ADMINISTRATIVEREVIEW COUNCIL

REPORT TO THEATTORNEY-GENERAL

AUSTRALIAN BROADCASTINGTRIBUNAL PROCEDURES

REPORT No 12

CONTENTSList of Recommendations ParagraphsINTRODUCTION 1-10 The Scope of this Report The Council’s Study

1-56-10

THE BASIS OF AN INQUIRY PROCEDURE 11-20 Obejectives of the Procedure Weaknesses Revealed by Experience Feature of the Recommended Procedure

11-1711-19

20THE RECOMMENDED INQUIRY PROCEDURE 21-112 Unform Procedures The Inquiry Stages Initiation of Inquiries Applications Immediate Disposal Adverstisement and other Notices Submissions Replies and further Documents General Provisions for Documentation Assessment of Documentation Redifinition and Readvertising Deciding without a Hearing, and Suspending or Deferring the Proceedings Conferences Interim Extensions Preliminary Hearings Hearing Standing to Appear at Hearings Representation of Parties Witnesses Transcripts of Hearings The active Involvement of the Tribunal in Inquiries Reasoned Decisions

21-2425-2627-3132-3435-3738-4142-4344-4546-5556-5758-59

60-6364-6667-6970-7172-7677-8687-8990-9293-9596-108

109-112

OTHER MATTERS AFFECTING PROCEDURE 113-140 Membership and Organisation of the Tribunal The Tribunal’s Powers Alternative Methods of Public Involvement and “General Inquiries” Assisting Participation Prosecution of Contempts and other Breaches of the Act The Prescription of Procedures

113-120121-126

127-131132-133134-137138-140

APPENDIX 1 Page Persons making Submissions 57APPENDIX 2 Persons met by Committee 58APPENDIX 3 Outline of Submissions received by the Administrative Review Council on the Procedures of the Australian Broadcasting Tribunal

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APPENDIX 4 Flow Chart of Procedures 62

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LIST OF RECOMMENDATIONS

RECOMMENDATION 1The Act should make provision for a uniform inquiry procedure to be detailed in regulations, and should require the procedure to be followed before the Tribunal may exercise any of its substantive powers except such miscellaneous powers (not relating to licensing, control of licences and standards) as do not of their nature require inquiries.

RECOMMENDATION 2The Act should provide that applications commencing inquiries may be made:

(i) for the exercise of the power to grant new licences: by prospective licensees within 8 weeks of the Minister advertising proposed specifications or within such greater time as the Tribunal may allow;

(ii) for the exercise of the power to renew: by the licensee at least 20 weeks before expiry of the current licence;

(iii)for the exercise of any power to approve transfers, leasing arrangements, transactions and company changes: at any time by any person directly concerned;

(iv) for the exercise of any other power: at any time by any person or upon the initiative of the Tribunal.

RECOMMENDATION 3(a) Regulations should prescribe the forms for applications, so that

applications specify the orders, directions or standards sought to be made by the Tribunal, and particularise the facts or matters providing grounds for the making of such orders etc. The Tribunal should have power to permit amendments where reasonable in the circumstances.

(b) The regulations should provide that, so far as is possible, the evidence upon which the applicant relies should be in documents or written statements which accompany the application; but the Tribunal should have power to permit the introduction of additional material at later stages if it is reasonable to do so in the circumstances.

RECOMMENDATION 4(a) The Tribunal should be empowered by the regulations:

(i) to refuse an application which does not comply with the regulations or is scandalous, vexatious, frivolous or an abuse of the Tribunal's proceedings, or which does not disclose information supporting the decision sought; and

(ii) to grant or refuse an application clearly of a minor nature, without first advertising the application.

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(b) The regulations should provide that where the Tribunal makes a decision under (a), it shall within 14 days thereafter advertise the decision in the prescribed manner together with particulars of the times when and places where copies of the application, supporting documents and the reasons for its decision may be inspected by members of the public, provided that the Tribunal may, if it thinks fit, withhold an application of the kind referred to in paragraph (a)(i) of this recommendation from public inspection.

RECOMMENDATION 5(a) The Regulations should provide that, except where it makes a

decision pursuant to the power proposed in Recommendation 4, the Tribunal shall within 28 days of receipt of an application advertise the application in the prescribed manner, including particulars of:

(i) the nature of the application;(ii) the times and places at which copies of the application and other

documents may be inspected by members of the public;(iii)the limes within which persons may make submissions to the

Tribunal in relation to that application; and(iv) the fact that a register will be kept of the names of all persons

wishing to receive notices relating to the inquiry.

(b) The Regulations should prescribe that where any matter is required to be advertised it shall be advertised by notice in the Government Gazette, in any official bulletin published by the Tribunal, in at least one newspaper, and by such other means (if any) as the Tribunal may determine. The Tribunal should also be empowered in its discretion to make additional advertisements and to direct licensees to advertise matters which concern them.

(c) The Regulations should require the Tribunal as soon as practicable to give written notice to a licensee of any application made by another person or of any inquiry commenced by the Tribunal which directly concerns that licensee.

(d) The Regulations should require the Tribunal to maintain a register for each inquiry of persons who are to be sent notice of all significant steps taken in the course of that inquiry.

RECOMMENDATION 6(a) The regulations should prescribe that the time for making

submissions is 6 weeks from the date of first advertisement of an application or such other time as the Tribunal may specify in the advertisement, but should give the Tribunal power to extend the time when appropriate.

(b) The regulations should prescribe the form of submissions, and require submissions to specify particulars of any facts supporting allegations made and any substantive or procedural orders or

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directions sought from the Tribunal. The Tribunal should have power to permit amendments where reasonable in the circumstances.

(c) The regulations should require submissions so far as is possible to be accompanied by the evidence relied upon, which is to be in the form of written statements of proposed witnesses or of other documents, but should empower the Tribunal to permit the introduction of additional material if it is reasonable to do so in the circumstances.

RECOMMENDATION 7(a) The regulations should require applicants for the exercise by the

Tribunal of its substantive powers, and should permit other persons making submissions, to reply to documents lodged by other people so as to provide answers to all significant and relevant statements with which they disagree.

(b) The regulations should empower the Tribunal of its own motion or on request to require by such date as it may determine further written information or comments from applicants or persons making submissions on any document filed with the Tribunal, so as to ensure that issues are clearly defined, and if possible that evidence is reduced to a documentary form.

RECOMMENDATION 8(a) If a submission or other document tendered at any stage of an

inquiry proceeding is scandalous, vexatious, frivolous or an abuse of the Tribunal's proceedings, the regulations should empower the Tribunal to refuse to consider any such application, submission or document, and to order that it shall not be available for inspection.

(b) Section 19 of the Act should be amended to make it clear that the Tribunal's power to make confidentiality orders commences as soon as an application has been lodged with the Tribunal and continues throughout the course of any subsequent inquiry.

(c) The regulations should permit any person wishing to file a document in an inquiry to apply to the Tribunal for an order under section 19 of the Act at any stage prior to or during an inquiry.

RECOMMENDATION 9Sub-section 23(2) and paragraph 24(b) of the Act should be amended, so that their protection and immunity apply only once a hearing has commenced or once the Tribunal has decided to dispense with a hearing. Once one of these events has occurred the protection and immunity should extend to all earlier aspects of the proceedings, including all documents filed.

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RECOMMENDATION 10(a) The regulations should specify that applications,. submissions and

documents filed in support (other than those withheld pursuant to Recommendation A are automatically to form part of the inquiry file available for public inspection.

(b) The regulations should not require more than one copy of applications, submissions and supporting documents to be filed with the Tribunal.

(c) The regulations should provide that from the date of advertisement of an application copies of the inquiry file are to be made available for inspection by members of the public at the Tribunal's central office and at such other places as are determined by the Tribunal.

(d) No persons, including those lodging applications, submissions and documents, should be entitled to receive copies of material filed, but if possible the Tribunal should have facilities for providing copies on request for a reasonable fee.

RECOMMENDATION 11(a) The regulations should provide that where an application or

submission is made on behalf of an unincorporated association, it should contain:

(i) either a list of the members of the association or, where the membership exceeds 20 a list of its officers and a description of its membership; and

(ii) a statement of the objects of the association.

(b) The Tribunal should maintain and make available for public inspection a register of unincorporated associations wishing to make submissions or applications from time to time, with particulars as in (a). Provided the particulars of an association are current, reference by it to the register would be sufficient compliance with requirement (a) above.

RECOMMENDATION 12After the expiry of the advertised closing date for submissions, and if necessary at appropriate subsequent stages, the Tribunal should assess the file and decide which of the following steps should be taken:(a) requiring that replies or further documents be provided - by

applicants or other persons making submissions;(b) arranging for an investigation to be undertaken by or on behalf of

the Tribunal;(c) redefining the inquiry's terms of reference, with further

advertisement and the opportunity of making further submissions;(d) deciding an inquiry without holding a hearing;(e) suspending or deferring further proceedings;

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(f) arranging a conference with such applicants and/or other persons making submissions as it considers appropriate;

(g) arranging a preliminary hearing to determine the issues and/or procedures for a hearing; or

(h) arranging for a nearing.

RECOMMENDATION 13(a) The regulations should empower the Tribunal following the closing

date for submissions in an inquiry to state new terms of reference which may be wider or narrower than the terms of the application previously advertised.

(b) The Regulations should provide that, where the Tribunal states new terms of reference substantially different from those set by the application, it shall advertise them in the prescribed manner, and allow opportunity for further submissions to be made.

RECOMMENDATION 14The regulations should provide that:(a) at any time subsequent to the closing date for submissions the

Tribunal may in its discretion determine that it will proceed to a final decision in the inquiry without a hearing or other proceeding:

(i) where no submissions opposing the orders sought in the application or the terms of reference or seeking substantially different orders have been received by the Tribunal;

(ii) where the Tribunal determines that all submissions received are irrelevant to matters to be decided; or

(iii)where the Tribunal determines that the submissions and any of its own investigations have raised no substantial issue of controversy or public concern.

(b) The Tribunal may at any time subsequent to the closing date for submissions suspend the proceedings or delay holding a hearing where it appears reasonable to do so.

(c) Any decision made under (a) or (b) is to be advertised within 14 days in the prescribed manner and the reasons for it placed on the public file.

RECOMMENDATION 15The regulations should empower the Tribunal in its discretion to conduct conferences, and should contain provisions that:(a) the Tribunal may direct any person who has filed a document in the

inquiry to attend;(b) when calling a conference the Tribunal may specify which of the

matters raised in the inquiry documentation shall be canvassed at the conference;

(c) a conference shall be chaired by the Chairman of the Tribunal or by a member of the Tribunal chosen by the Chairman;

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(d) conferences shall be public except where the chairman of a conference otherwise directs;

(e) unless otherwise agreed by all participants any statements made in a conference shall be without prejudice in the inquiry proceedings;

(f) conferences shall be conducted with minimal formality and no transcript shall be taken without the consent of the parties and the leave of the chairman, but any agreement reached at the conference shall be recorded on the inquiry file.

RECOMMENDATION 16Amendments to the Act should:(a) empower the Tribunal at any time after the commencement of an

inquiry into the renewal of a licence to make orders extending the time for the expiry of the licence until the conclusion of the inquiry; and

(b) amend sections 90J(3) and 92F(3) to provide that the 3 month period mentioned therein is not to run during the currency of an inquiry by the Tribunal into the transaction or related transactions.

RECOMMENDATION 17The regulations should empower the Tribunal to conduct preliminary hearings where they appear necessary or desirable to assist the expeditious determination of an inquiry. At these hearings the Tribunal should receive and consider comments from persons who have filed documents, and should have power to give appropriate directions as to the procedures to be followed in an inquiry, including:(a) disposing of the proceedings without a further hearing;(b) suspending or deferring further proceedings in the inquiry;(c) calling a conference;(d) stating new terms of reference, and arranging for advertisement

and the opportunity to make submissions;(e) settling the relevant issues arising out of applications, submissions

and other documentation which are to be canvassed at the hearing;(f) ruling upon the persons whose submissions are sufficiently

complete and relevant for them to have standing to appear at a hearing;

(g) directing two or more parties wishing to present substantially similar cases to make a joint appearance at a hearing;

(h) directing the consolidation of two or more proceedings where this is convenient;

(i) ordering the proceedings, including the order in which parties are to be heard;(j) permitting amendments or additions to applications or submissions;(k) on procedures for verifying documentation on the file, where this is necessary;(l) on the form of any additional evidence to be accepted at the

hearing, including written statements, reports of telephone conversations and the witnesses who will be heard;

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(m) on discovery and inspection of documents held by the parties;(n) on procedures for the parties to agree upon facts;(o) on the nature and conduct of any cross-examination necessary at the hearing;(p) receiving documents upon summonses;(q) setting timetables and ordering extensions of time limits;(r) giving directions or rulings upon any other matters raised by the

Tribunal or the parties concerning the course to be followed at the hearing.

Where such preliminary hearings are held, they should be conducted in public except where the Tribunal otherwise directs, and the results recorded on the public file.

RECOMMENDATION 18The Tribunal should continue to aim to achieve an informal hearing atmosphere, and provide adequate facilities to enable the full participation of all parties in the view and hearing of the public.

RECOMMENDATION 19To determine what persons are to be parties to a proceeding, and thereby entitled to appear at its hearing, and to provide for adequate control of proceedings:

(a) the Act should be amended by deleting section 22AA, and by amending sections 25(3) and 25AA so as to substitute for the references to 'persons having an interest' a reference to 'the parties to a proceeding as determined in accordance with the regulations';

(b) the regulations should provide that all persons are parties who have lodged documents which are accepted by the Tribunal as complying with the regulations and as being relevant to the inquiry;

(c) the regulations should empower the Tribunal in its discretion to direct two or more parties who wish to present substantially similar cases to make a joint appearance at a hearing;

(d) the regulations should empower the Tribunal to confine the conduct of proceedings at the hearing to matters relevant to the issues defined by the Tribunal at a preliminary hearing, and to limit the participation of a party to those issues which he has raised in the documents filed by him;

(e) the regulations should give the Tribunal residual discretion in special circumstances to recognise as parties persons who have not lodged documents, and to allow matters to be raised at a hearing which were not identified in preliminary stages of the inquiry.

RECOMMENDATION 20

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(a) Section 22 of the Act should be repealed, and the regulations should entitle all parties to be represented by an agent in proceedings.

(b) The Tribunal should conduct its proceedings in such a manner as to discourage unnecessary technicality, including ensuring, as far as possible, that no party suffers detriment by the absence of legal representation.

RECOMMENDATION 21The regulations should provide that each party have full rights to present and cross-examine witnesses at hearings, subject to compliance with all procedural requirements, and subject to the directions of the Tribunal on relevance to his documentation and on repetition.

RECOMMENDATION 22The regulations should provide that any person may record public proceedings at inquiries in a mode which causes no disruption to those proceedings, unless the Tribunal, otherwise directs.

RECOMMENDATION 23(a) The regulations should provide that where the Tribunal proposes

inquiry proceedings of its own motion, it should do so in a form basically similar to that of proceedings commenced by the application of outside persons.

(b) The regulations should provide that where the Tribunal initiates inquiry proceedings, the initiating document should particularise any facts or matters which have caused the Tribunal to commence the inquiry. The Tribunal should also be required immediately to place on the file any reports or other documents concerning the matters the subject of the inquiry which are not the subject of confidentiality orders.

RECOMMENDATION 24(a) The Tribunal should be empowered to request reports from such

agencies as may be established for this purpose, and to commission research on matters specified by it as relevant to proceedings.

(b) The Tribunal should be empowered to require any licensee to keep records of matters broadcast, and to produce records to the Tribunal.

(c) The Act should be amended so as to make clear that evidence of broadcasting activities may be received by the Tribunal in any form, and that section 120 is subject to this.

RECOMMENDATION 25(a) The regulations should require that all investigations conducted by

or on behalf of the Tribunal which it is proposing to consider in proceedings, whether initiated by the Tribunal or an outside person, should be reported in documents placed on the record with sufficient time for applicants and persons who make submissions to

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reply and comment, and no later than 28 days before the date of any hearing.

(b) The Tribunal should ensure that all legal advice received by it before a hearing on the matters the subject of a current inquiry is recorded in writing and placed on the inquiry file.

(c) The regulations should provide that, where the Tribunal itself wishes to call a witness, if possible his evidence should be made available during the documentary stage of an inquiry.

RECOMMENDATION 26The Tribunal should as a general rule be assisted by counsel or officers appearing at hearings where it wishes actively to present a case or where it may call a witness who is to be examined by a party.

RECOMMENDATION 27(a) The Tribunal should, where possible, adopt the practice of giving its

reasons for all substantive or procedural decisions at the times when decisions are made.

(b) The Tribunal should consider what steps are available to enable those of its decisions which state its view upon the interpretation of the Act or regulations or upon general criteria relevant to the exercise of its powers to be made available to persons wishing to participate in its inquiries.

RECOMMENDATION 28(a) The Act should provide that at least one member appointed to the

Tribunal shall be a legal practitioner of not less than 5 years standing, and that all appointments shall be for up to 7 year terms with eligibility for reappointment.

(b) In practice, appointments should be staggered so that some continuity of membership is maintained, and should also be for terms as close as practicable to the maximum.

RECOMMENDATION 29The Act should be amended to provide that:(a) there is no limitation upon the Chairman's power to constitute a

Division of the Tribunal for the purposes of holding an inquiry;(b) the Chairman may direct the reconstitution of a Division at any time

before the commencement of a hearing in an inquiry, and after that time, if a member of the Division ceases to be a member or to be available for a hearing, the Chairman may direct that another member is to replace him;

(c) where a Division is constituted, only members constituting that Division may participate in making the decision, recommendation or report upon the matter or matters the subject of the inquiry, provided that in special circumstances the Chairman may direct that the decision, recommendation or report is to be made by the Tribunal; and

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(d) any powers to give directions as to the steps to be taken in an inquiry may be exercised by the Chairman or by a member designated by the Chairman, whether or not he is a member of the Division constituted for the holding of the inquiry.

RECOMMENDATION 30(a) The Act should be amended to include clear statements of the

policy criteria seen by the Government as relevant to the exercise of the Tribunal's important powers.

(b) The Act should be clarified in relation to the Tribunal's power to issue directions to particular licensees and to attach conditions relating to one, some or all aspects of their future broadcasting activities, and also in relation to its power at inquiries to investigate and comment upon matters connected with the past or future broadcasting practices of the licensees concerned.

(c) The Act should confer upon the Tribunal a wider range of powers to respond to breaches of broadcasting standards, including power to reprimand or admonish and to direct the publication by the licensee concerned of such a reprimand or admonition, and power to impose temporary restrictions on advertising.

RECOMMENDATION 31The Tribunal should initiate a new inquiry if, at any stage of a 'general inquiry', the possible exercise of one of its substantive powers becomes an issue.

RECOMMENDATION 32The Act should be amended to empower the Tribunal to summon a person who may be in contempt of the Tribunal to show cause why proceedings should not be taken against him. Upon the Tribunal deciding that proceedings should be taken, the Secretary of the Tribunal should be empowered to apply to the Federal Court for that Court to determine whether there has been a contempt and, if so held, to fix a punishment.

RECOMMENDATION 33While the Tribunal ought not to be given a formal role in the prosecution of people for alleged breaches of the Act, it should take note of prima facie breaches coming to its attention in the course of inquiries, and draw them to the attention of the Minister.

RECOMMENDATION 34The Act should permit regulations to be made containing inquiry procedures and forms. These regulations should contain sufficient powers to waive departures, where it is just to do so. As far as possible, advance notice should be given before major changes to procedure come into effect, and the regulations and other rules of procedure should be readily available to the public.

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INTRODUCTIONThe Scope of this Report1. This report is the Council's response to an invitation from the Attorney-General on 12 February 1980 to comment on the procedures to be followed by the Australian Broadcasting Tribunal at public inquiries. It recommends a series of amendments to the Act, new regulations, and desirable administrative practices, which would establish a procedure to be followed in inquiries conducted by the Tribunal. The procedure would provide a flexible set of uniform procedural rules for the exercise by the Tribunal of its substantive powers to regulate broadcasting.

2. In recommending this procedure, the Council has examined the statements of the Government when it established the independent Tribunal and required it to follow procedures to involve the public and the broadcasting industry in its activities, and the various criticisms made of the Tribunal to date. The Council believes that the recommended inquiry procedure conforms to the policy reflected in the Act and should provide solutions to the difficulties encountered by the Tribunal in its attempts to develop a workable procedure. The Council also makes recommendations in this report on other matters which directly affect the smooth operation of the inquiry procedure. These include the constitution of the Tribunal and the need for clarification of some of its powers.

3. Participation by the public in broadcasting inquiries is not a feature peculiar to Australia, and the Council notes that several overseas countries also emphasise participation by the public and the industry in the regulation of broadcasting - an industry whose healthy functioning is essential to a democracy. The present policy of the Government, and a policy reiterated by successive Ministers, reflects this international development and recognises that a broadcasting licence is an important privilege that ought to be surrounded by appropriate procedural safeguards.

4. The Council noted the development of the Tribunal, and in 1979 decided to include in its work program a project which would examine the Tribunal's procedures and rights of review of decisions made under the Broadcasting and Television Act 1942. Following receipt of the Attorney-General's invitation the Council decided that the project should proceed as quickly as possible under the following terms of reference: the procedures of the Australian Broadcasting Tribunal; the standing of persons seeking to be heard before the Australian

Broadcasting Tribunal; the decisions of the Australian Broadcasting Tribunal and the Minister

under the Broadcasting and Television Act 1942 which should be subject to review; and

the appropriate mode of review and the standing of persons to seek such review.

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5. The Council has reserved from this report questions relating to review of decisions of the Tribunal and the Minister. This course was taken both to enable the Council to respond quickly to the matter specifically raised by the Attorney-General, and also to allow the Council first to receive the Government's response to its recommendations on procedures for primary decision making. Questions of appropriate review may concern procedural decisions of the Tribunal limiting the participation of people in inquiries, as well as substantive decisions of the Tribunal and the Minister. In the view of the Council, the introduction of rights of review in these areas, or the alteration of existing rights, does not need to follow immediately the introduction of the recommended inquiry procedure, which will itself promote fair and equitable decision making at first instance. The Council is working upon these matters, and will prepare a further report on them.

The Council's Study6. The Council's study was initiated at its meeting in March 1980. At that meeting the Council established a Committee and requested it to conduct the study and to prepare a report to be considered by the Council. Being aware of the great public interest in the Tribunal's inquiries, on 16 April 1980 the Council placed advertisements in daily papers throughout Australia and invited submissions by 6 June on matters covered in its study.

7. Written submissions were received from the 46 people or groups listed in Appendix 1 to this report. With the assistance of the Commonwealth Ombudsman and the Law Reform Commission, copies of all submissions for which confidentiality was not requested were made available for public inspection in all capital cities. As well as considering all the written submissions, the Committee had the assistance of 20 short meetings in September and November 1980 with the persons listed in Appendix 2. Appendix 3 to this Report contains an outline of the submissions made to the Council by the Tribunal, the Department of Communications and members of the industry.

8. Although it had earlier expressed an intention to make a submission, the Federation of Australian Commercial Television Stations on 31 July 1980 wrote to the Council and referred to several developments, including changes of Tribunal membership and proposals for legislation, which had occurred after the Council's review was announced. It submitted that the Council should postpone its review of the Tribunal's procedures until such time as the revised functions of the Tribunal and the Broadcasting Information Office became clear. A reply on behalf of the Committee did not agree that the Council should postpone its report, and indicated that a submission from FACTS would be welcome. No submission was received.

9. On 29 April 1980, the Tribunal and the Department were invited to assist the Council by presenting papers upon the various issues and

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options to be considered by the Council. A submission was received from the Department on 28 October 1980, and discussed with its representatives on 4 November. The Tribunal's submission was received on 5 December and discussed with it on 11 December 1980. Members of the Committee and the Council's Secretariat attended 12 of the Tribunal's hearings held during the course of 1980.

10. On 9 December 1980 the Minister for Communications announced that the Government was conducting a review of the Broadcasting and Television Act 1942, and asked for submissions to be received by 31 December 1980. The Council was informed that the Government had requested that the results of this review be reported to it during January 1981, and that there was a possibility that a bill would be introduced to amend the Act in the Autumn Session of Parliament. In these circumstances, the Council felt that it should endeavour to assist the Government by reporting as soon as possible upon the matter referred to it by the Attorney-General. This report was adopted by the Council at its first meeting in 1981 on 6 February 1981.

THE BASIS OF AN INQUIRY PROCEDUREObjectives of the Procedure11. This report is concerned with the parts of the Broadcasting and Television Act 1942 which regulate the activities of people, other than the Government, involved in broadcasting radio or television services. As well as obligations being directly imposed by the Act, regulation is performed by an administrative structure vested with powers to grant, renew, suspend and revoke licences, to approve transactions affecting the control or ownership of licences, and to determine the general standards and conditions with which broadcasters are to comply. These powers have remained substantially unchanged for many years, but in 1976 and 1977 the Government introduced major changes to the authority which was to exercise them, and to the procedures which it was to follow. Instead of the Minister acting on the advice of the Broadcasting Control Board, the powers were placed in the hands of an independent Australian Broadcasting Tribunal, which was required to make its decisions after following a process designed to enable the fullest involvement of members of the public and of the industry being regulated. This process is the 'inquiry procedure', which confers upon members of the public and persons affected rights of making submissions and of participation in hearings conducted by the Tribunal prior to its decisions.

12. The principles of the Government's policy were stated by the then Minister in introducing the Broadcasting and Television Amendment Act 1977. He said:

''The principle of a broadcasting system not subject to political interference is one of the basic aims of the changes proposed in this Bill. The major element of the changes aimed at depoliticising the broadcasting system is the transfer of the licensing power from the Minister to the Australian

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Broadcasting Tribunal. The broadcasting industry has sought this change for many years and it is considered to be an important factor in achieving more effective broadcasting administration. In addition, we believe it highly desirable that there should be a significant degree of public and industry involvement in the development of broadcasting.

This medium plays a very important role in the life of most people. Accordingly, the planning and administration of broadcasting should be designed in a manner which will enable it to be responsive to the needs of the community. The Government has not been reluctant to institute procedures to enable the fullest public and industry involvement. The activities of the Australian Broadcasting Tribunal will, as far as possible, be conducted in public and the public will have substantial access to the inquiry and deliberative activities of the Tribunal. The principle of accountability by broadcasters within the broadcasting system has also been considered as an important element.

The Government has taken decisions to ensure that broadcasters, making use of a scarce national resource such as frequencies, are accountable for their activities. The Tribunal must be able to justify publicly its deliberative and decision making activities and, in a similar manner, broadcasters will be made to account, at renewal hearings, and in public, for their programming performances. (Parliamentary Debates, House of Representatives, 30th Parliament, 2nd Session at 2005, 13 October 1977). ''

13. These principles received interpretation by the Tribunal in its report Self-regulation for Broadcasters?, which followed a lengthy inquiry held during 1977 at the direction of the Minister. The Report introduced a new approach to licence grants and renewals with the aim of promoting a greater degree of direct public accountability in broadcasting and encouraging a greater degree of responsibility and responsiveness among broadcasters' (see para. 2.19). This was stated to be a response to the growth of 'consumerism', and explained in the following terms:

4.3 In the past, of course, commercial broadcasters in Australia have been formally accountable to the public's representatives in Parliament through the ABCB. But this system of accountability was both weakened by the Control Board's legal inability to affect the significant policies of broadcasters, and complicated by the political and philosophical problems of governments wishing to avoid being seen to interfere with the freedom of broadcasters. Moreover, the mere existence of the Control Board gave the industry a valid reason not to consult with individuals and interested community groups. There was no reason to confer directly with the public if it was possible to negotiate directly with a body which. on behalf of the government, represented the public. We believe that the industry, either on a collective or an individual basis. should be regularly and directly confronted with the views of those whom it serves. The Tribunal contends that regular, public inquiries on licence applications and renewals will achieve this aim.

4.4 The philosophy of direct public accountability is the basis of our approach to the regulation of broadcasting. There will, of course, always be a role for an offiqial agency to control the grant and renewal of licences and maintain a power of ultimate sanction over broadcasters who betray their public trust. The Tribunal also considers that it has an obligation, at least as an interim measure. to assist the public. and broadcasters to develop and maintain mechanisms to encourage the exercise of a system of accountability.

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14. The 1977 amendments to the Act, and the Tribunal's Self-regulation Report, placed emphasis upon the central place of public inquiries into licence renewals in the new system of broadcasting regulation. However, the concept of public participation through an inquiry process goes further than licence renewals. For many years the Act has provided for public inquiries to be held before new licences are granted, and has given the regulatory authority a general discretion to hold inquiries before taking any action under the Act. Although the former Control Board seldom used this discretion, the Tribunal has said that it will do so before exercising its power to approve licence transfers, operating agreements and share transactions (see Annual Report 1976-77, page 19 at para. 90). In 1977 the then Minister announced the Government's intention to amend the Act expressly to require inquiries to be held before such approvals are given (Press statement of 6 June 1977). In its Self-regulation Report, the Tribunal also indicated that inquiries would have an important role in the Tribunal's decision making on general broadcasting standards, and on appropriate reactions to breaches of those standards by licensees.

15. Public inquiries as a regular procedure in the exercise of regulatory powers are not usual in Commonwealth administration but they are not uncommon in other jurisdictions. The statements quoted above indicate their special relevance in the area of broadcasting. It seems to the Council that in many respects the Government and Tribunal embarked upon the new system of administration without thorough analysis of its implications, and without devising in advance the procedures under which it was to operate. However, this view is taken with hindsight, based upon the Council's examination of the history of the Tribunal's inquiries held from 1978 to 1980, and upon the comments made in submissions to the Council by those who attempted to participate in them. In particular, what has clearly emerged from this history is that, even more than in primary administration conducted by traditional bureaucratic methods, an administration actively invoking public participation must be guided by clear and thorough rules of procedure.

16. In formulating its recommended inquiry procedure, the Council worked from an analysis of the elements of the Government's policy. It suggests that the Tribunal's inquiry procedure is intended to meet the following objectives:

Information. Inquiries are a method whereby the Tribunal is informed from public sources on matters necessary to the exercise of its powers. The Tribunal is placed in direct contact with members of the public whose interests are affected by broadcasting regulation. Through inquiries the Tribunal learns of the actions of licensees, of the expectations and opinions of various sections of the community, and of expert or specialised research by relevant interest groups and persons. The procedure locates this material, focuses it for the attention of the Tribunal, and subjects it to examination and analysis. Being directed towards the possible exercise of identifiable powers, the procedure enables decision making to be done efficiently and thoroughly. By tapping community resources and initiative, the regulatory administration is less dependent upon expensive bureaucratic structures for research,

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monitoring and policing. But community activity requires encouragement: it may need some funding or other material assistance, and must be given the inducement of a real involvement in decision making.

Responsiveness. The linking of inquiry procedures to the exercise of regulatory powers by the Tribunal helps to ensure that the Tribunal will be responsive to the interests of the community. Rights are created for members of the public and for the industry being regulated to participate in inquiries leading to Tribunal decisions. The inquiry process thus becomes an assurance that the independent tribunal will hear and react to relevant concerns. This assurance replaces the former political responsiveness of the Minister, when he exercised the same powers. Inquiries are therefore not only to assist the Tribunal in ways most convenient to it: they are the means of public and industry involvement in the processes leading to its important decisions. This requires that the inquiry process is open, reasoned and governed by procedural rules giving extensive rights of public participation. The conduct of inquiries leading to decisions is the dominant function of this independent and 'quasi-judicial' Tribunal. .

Fairness, Relevance and Expedition. The use of an inquiry procedure in connection with the exercise of regulatory power gives rise to this third set of objectives. While there are clear reasons for involving members of the public in broadcasting regulation by the Tribunal, the procedure for doing this must avoid several pitfalls. Important economic and social interests are concerned in the industry being regulated, and the machinery of regulation must be fair to all interests and operate as cheaply and quickly as possible. Fairness can be promoted by appropriate procedural rules controlling the various stages of an inquiry. Cost and expedition are to be controlled by ensuring that each inquiry is properly directed to issues relevant to each exercise of power under consideration, and that rights of participation are not open to abuse. In particular, oral hearings should be held in an 'inquiry only after issues are defined and evidence collected, and then only in those cases where a need has been demonstrated for debate or examination of those issues. In other cases, the objectives of public participation can be adequately met by an inquiry procedure which stops short of an oral hearing.

17. In summary, the Council believes that the Tribunal's inquiry procedure should be designed to meet the following objectives:(a) to enable the Tribunal to be fully informed upon matters relevant to

the exercise of its powers;(b) to confer upon those members of the community who make relevant

written submissions, rights of effective participation in Tribunal processes leading to its substantive decisions; and

(c) to ensure that the procedure operates fairly to all persons involved, and with as little expense and delay as possible.

Weaknesses Revealed by Experience18. It seems to the Council that for reasons both within and outside its control the Tribunal has not developed procedures which fully meet the above objectives. The more important areas of difficulty encountered in the Tribunal's procedures may usefully be itemised, since the Council has drawn lessons from them in making its recommendations. Some of them have now been remedied.

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19. The Tribunal's history has revealed the following major problem areas:

Lack of inquiry experience. Lack of relevant experience in the conduct of inquiries and in the resolution of the many legal and procedural problems that had to be determined by the Tribunal meant that the Tribunal had difficulty in devising and supervising fair procedures appropriate to complicated inquiries.

Imperfect legislation. The introduction of inquiries revealed that the Act permitted frustrating debate upon the legal obligations of licensees and the criteria governing the Tribunal's powers. In particular, the relevant issues at renewal inquiries were confused by uncertainty on how far the Tribunal's responsibilities extended to the promotion of general broadcasting standards including those of a less tangible or less readily definable kind.

Insufficiently defined procedures. Inquiries were commenced without sufficient rules of' procedure being notified in advance, and in some the procedure changed during their course.

Inadequate definition of issues. The Tribunal's original concept of renewal hearings providing for general accountability proved to be unworkable, and it was apparent that each inquiry needed to be directed at an early stage to defined issues on whether particular Tribunal powers should be exercised.

Over-emphasis upon renewal inquiries. Once the lesson referred to in the preceding paragraph was learnt, people were frustrated when the Tribunal would not allow their real concerns to be raised in renewal hearings. It now seems that public interest is often more concerned about whether the Tribunal should set standards, react to breaches of standards or consider ownership transactions than about renewal of licences.

Unnecessary hearings. Now that misconceptions about the nature of renewal hearings are apparent, it is clear that many of the renewal hearings held by the Tribunal are unnecessary. It seems that the possible exercise of any of the Tribunal's substantive powers may in some circumstances raise matters of public concern, while in other circumstances decisions may properly be made without oral hearings.

Unprepared hearings. In many inquiries the Tribunal concentrated too much upon the use of a single hearing to resolve matters of great concern. Its failure to conduct preparatory stages to define issues, prepare evidence and decide procedural points led to hearings being dominated by legal controversy on procedure and to useful public participation being discouraged.

Unclear rights of participation. Because of the clouded issues and unprepared hearings, the Tribunal's early attempts to allow the widest public participation proved unmanageable, and led it to refuse rights of participation in inquiries to some members of the public. Such criteria as it attempted to state for doing this were confusing and unpredictable, and discouraged useful participation.

Difficulties of investigation. Members of the public were uncertain whether they or the Tribunal or some other government agency should

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conduct the sometimes expensive research into matters relevant to an inquiry, and also on who should present it to the Tribunal and in what form.

The Council makes recommendations with respect to the first two of these matters at paragraphs 117 and 126 below. The other matters are covered within the Council's detailed recommendations for the establishment of a uniform inquiry procedure. But before setting out those recommendations, it is useful to state the essential features of the procedure recommended by the Council.

Features of the Recommended Procedure20. The Council considers that its recommended procedure will solve the difficulties encountered by the Tribunal, by containing these features:

(a) A uniform inquiry procedure, which is to be followed by the Tribunal as a pre-condition of the exercise by it of substantive powers, particularly its powers over licensing, the control of licences and the fixing of standards.

(b) The separation of the procedure into stages of preliminary documentation, pre-hearing activities, substantive hearing and decision making.

(c) Emphasis in all inquiries upon a documentary stage proceeding under the administrative supervision of the Tribunal, to ensure that as far as possible evidence is in writing and that issues are defined before any hearing is held.

(d) Provision for abridging of or dispensing with subsequent stages in an inquiry, including a discretion for the Tribunal to dispense with a hearing where no substantial issue of controversy or public concern arises.

(e) Conferring on the Tribunal the option of conducting conferences or general inquiries' as alternatives to or in preparation for formal hearings.

(f) Establishing rights for members of the public to participate in inquiries by initiating inquiries, by receiving notice of the commencement of inquiries, by having opportunity to inspect documents tiled and to file written submissions, and by being entitled to participate in a hearing if they have made relevant written submissions.

THE RECOMMENDED INQUIRY PROCEDUREUniform Procedures21. The Tribunal's substantive powers may be grouped as follows:

Licensing: to grant or renew licences upon conditions or otherwise (s. 81 (1)); to vary or revoke conditions of a licence or impose new conditions during its currency (s.85(1)); to specify a period less than 3 years for the duration of a renewed licence (s.87 (2)); to suspend or

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revoke a licence (s.88 (1)); and to consent to a licence being transferred or to a person being admitted to participate in or exercise the powers or authorities granted by a licence (s.89A).

Control of licences: to approve transactions whereby persons obtain or increase their shareholding interests in companies holding licences (ss.90J (2), 92F (2)); to direct persons to cease to have any shareholding interests in broadcasting and television companies acquired by transactions not given the approval of the Tribunal (ss.90J (3), 92F (3)); to approve changes in the memoranda and articles of licensee companies (ss.90K (1), 90L (2), 90L (5), 92FA (1), 92G (2), 92G (5)); to approve alternative directors to make annual declarations by licensees (ss.90M, 92H); and to require shareholders in licensees to declare beneficial ownership of shares (ss.90P, 92JA).

Standards: to determine hours of broadcasting by licensees (s.97); to determine the standards of programmes arid direct licensees to conform thereto (s.99 (1), (2)); to determine standards for the broadcasting or televising of advertisements and the conditions for broadcasting or televising of advertisements on Sundays (s.101 (4), (5)); to censor objectionable matter from any proposed broadcast or television (s.101); to determine the hours of religious broadcasting and whether it shall be free (s.103); to exempt the ABC and licensees from the prohibition on political broadcasting immediately before and during elections (s.116 (4)); and to restrict persons' participation in broadcasting or television (s.1 19).

Miscellaneous: to arbitrate upon conditions and charges for transmission of ABC television programs by commercial television stations (s.113); to approve publication or rebroadcasting of transmitted programs (ss.120, 121); to permit broadcasting in code (s.123); and to issue and cancel permits for test transmissions (s.126).

22. Except perhaps in relation to some of the miscellaneous powers listed above, the Council considers that decisions whether to exercise any of the above powers will in many circumstances be of public concern and therefore should be preceded by a full inquiry including a hearing. Although some of the powers are more likely to give rise to matters of public concern than others, it is not possible to generalise that particular powers should always be outside the scope of an inquiry procedure, nor that the likely matters of concern will always be apparent when the Tribunal first considers the possible need for it to exercise one of its powers. These considerations suggest that a uniform inquiry procedure should be followed by the Tribunal before it exercises any of its substantive powers, but that the procedure should be flexible enough to enable a proceeding to be disposed of rapidly when it reaches a stage where a judgment can be made that no matter of controversy or public concern arises.

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23. The Council considers that a uniform inquiry procedure would permit rationalisation of the existing provisions of the Act and of the policies adopted by the Tribunal. Such a procedure would remove the confusion caused by the scattered inquiry provisions in the Act, and would confer clear rights for the public and the industry to become involved in any matters of concern to them. Because of the provisions for summary disposal of inquiries, the Council does not expect that the proposed uniform procedure would increase substantially the workload of the Tribunal, but indeed considers it likely to reduce the number of oral hearings, particularly in country areas, now being conducted by the Tribunal.

RECOMMENDATION 1The Act should make provision for a uniform inquiry procedure to be detailed in regulations, and should require the procedure to be followed before the Tribunal may exercise any of its substantive powers except such miscellaneous powers (not relating to licensing, control of licences and standards) as do not of their nature require inquiries.

The Inquiry Stages25. In the uniform inquiry procedure recommended by the Council, every proceeding (or 'inquiry') would commence with an application to the Tribunal or a decision of the Tribunal, and most would go through stages of advertisement, receipt of submissions and assessment. Later stages would be determined according to the circumstances of the inquiry. The elements of these stages are described in the succeeding sections of this Report, and a flow chart showing their interrelation is provided in Appendix 4. In summary, the inquiry stages are the following:

initiation of an inquiry by application or by similar step of Tribunal (see paragraphs 27-34);

immediate disposal of clearly minor applications or dismissal of any which are, for example, clearly scandalous, vexatious or frivolous (see paragraphs 35-37);

advertisement of the inquiry and notice of the availability of relevant documents for public inspection (see paragraphs 38-41);

establishment of a register of interested persons (see paragraphs 40-41);

opportunity for the making of written submissions and for replies and additional information to be obtained (see paragraphs 42-45);

assessment by the Tribunal of documentation, including opportunity for deciding without a hearing or suspending or deferring further proceedings in the inquiry (see paragraphs 56-57, 6063);

possible redefinition of terms of reference followed by advertisement and opportunity for making further submissions and further assessment of documentary material (see paragraphs 58-59);

possible conferences as preparation for, or alternatives to, a hearing (see paragraphs 64-66);

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possible preliminary hearings to settle the issues, determine the parties, direct the evidence, and make other directions for a hearing (see paragraphs 70-71);

a possible hearing (see paragraphs 72-108); a reasoned decision (see paragraphs 109-112).

26. In the Council's view these procedural stages should be controlled by regulations rather than the Act itself, to facilitate their modification in accordance with experience and changing circumstances.

Initiation of Inquiries27. The Council envisages that an inquiry will be commenced by the filing of an application by a person wishing to move the Tribunal to exercise one or more of its substantive powers, or by the Tribunal itself taking a similar step to initiate an inquiry into whether it should exercise a power. In the description of the inquiry procedure in this Report the term 'application' generally refers to both methods of initiation. Inquiries into the exercise of some powers, for example to grant or renew licences or to approve transactions, will only be initiated by application of a person clearly interested in obtaining the decision. Other powers, such as fixing general broadcasting standards or reacting to a breach of them by a licensee, are for the benefit of general public interests, and any member of the public may wish to move the Tribunal to exercise them. The Council considers that there should be general rights to file an application for the Tribunal to exercise these powers, as well as responsibilities on the Tribunal itself to initiate inquiries into them.,

28. The general rights of initiation of inquiries should be subject to several, important restraints. First, the Council recommends below that applications should be in a form giving full particulars and should be accompanied by written evidence in support. Any decision by the Tribunal to initiate an inquiry should be recorded in a similar form and should also be supported by written evidence. Secondly, the Council is recommending a power to dispose immediately of scandalous, frivolous and vexatious applications, those applications abusing the Tribunal's proceedings, and those which disclose no information supporting the decision sought. Thirdly, the Council recommends below that the Tribunal have power in appropriate circumstances to decide some applications without a hearing, and to suspend or deter inquiry into others. These procedures, together with the other procedural discretions recommended below, should enable the Tribunal properly to organise applications from members of the public, while ensuring that seriously presented applications will be considered by the Tribunal following advertisement and opportunity for submissions.

29. This having been said, the Council does not expect a general right of initiating inquiries often to be exercised by members of the public. The rights would be additional to, and not supersede, the informal processes presently conducted by the Tribunal and the industry for resolving most complaints and criticisms of broadcasting matters. The Council believes

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that the Tribunal will also need to exercise its own responsibilities to initiate or actively participate in inquiries on matters of public concern, and makes recommendations on this below at paragraphs 96-108.

30. The Council considers it important that from the start every inquiry should be conducted under clear terms of reference, which specify the powers whose exercise is to be under consideration in the inquiry. It therefore recommends below that each application should specify the decisions (including any alternative decisions) sought from the Tribunal. The question whether these decisions should be made will constitute the inquiry's terms of reference until, if ever, the Tribunal decides to re-define them. In this process of redefinition the Tribunal will be able, inter alia, to consolidate inquiries, to suspend all or parts of inquiries, or to add terms which it itself wishes to pursue. The possible need for redefinition will be considered as part of the Tribunal's assessment following the 'documentary' stages of application, advertisement and submissions. It is detailed below at paragraphs 58-59.

31. RECOMMENDATION 2The Act should provide that applications commencing inquiries may

be made:(i) for the exercise of the power to grant new licences: by prospective

licensees within 8 weeks of the Minister advertising proposed specifications or within such greater time as the Tribunal may allow;

(ii) for the exercise of the power to renew: by the licensee at least 20 weeks before expiry of the current licence;

(iii)for the exercise of any power to approve transfers, leasing arrangements, transactions and company changes: at any time by any person directly concerned;

(iv) for the exercise of any other power: at any time by any person or upon the initiative of the Tribunal.

Applications

32. The foundation of the uniform procedure recommended by the Council is a thorough documentation stage in each inquiry. Such a foundation permits uncontroversial inquiries to be disposed of by efficient administrative methods, and helps to ensure that where a hearing is necessary it will be conducted fairly and with strict regard to issues of which all parties have received notice. The requirement of written submissions responding to written applications will provide a useful discipline on all who seek to participate in an inquiry and also allow the widest possible rights of participation. For these reasons, the Council proposes the making of regulations which would require applications and submissions to be fully informative and to be accompanied by written statements of supporting evidence, and which would oblige the Tribunal to assess the sufficiency of documents lodged before taking the inquiry into subsequent stages.

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33. At present there are prescribed forms only for applications for the grant of new licences (s.82 (1)(b)(i)) and for the renewal of licences (s.86 (1)). The Council considers that these provisions should be removed from the Act, and that regulations should prescribe forms for making applications to the Tribunal for the exercise of any of its powers. It could be expected that different forms of application will be needed for each of the major types of decision sought from the Tribunal, and also a general residual form of application. In relation to the applications and documents in support, the Council considers that the general provisions in relation to confidentiality orders, public access and privilege discussed below at paragraphs 46-53 should apply.

34. RECOMMENDATION 3(a) Regulations should prescribe the forms for applications, so that

applications specify the orders, directions or standards sought to be made by the Tribunal, and particularise the facts or matters providing grounds for the making of such orders etc. The Tribunal should have power to permit amendments where reasonable in the circumstances.

(b) The regulations should provide that, so far as is possible, the evidence upon which the applicant relies should be in documents or written statements which accompany the application; but the Tribunal should have power to permit the introduction of additional material at later stages if it is reasonable to do so in the circumstances.

Immediate Disposal35. The Council considers that often it will not be possible merely from examining an application and its supporting documents to know whether it is likely to attract any public interest, and to know how the inquiry should proceed. These matters will only be discovered by advertising the application and its availability for public inspection and inviting written submissions, and waiting for a reasonable period to see what interest is shown in the matter. However, the Council envisages some circumstances where advertisement may clearly not be necessary, and where the Tribunal should have power to make a decision granting or refusing the application without taking further steps. These circumstances fall into two categories: applications which should be refused because they clearly do not

comply with the regulations or are scandalous, vexatious, frivolous, an abuse of the Tribunal's proceedings or disclose no information supporting the decision sought; and

applications which are clearly of a minor nature and able to be properly granted or refused without further inquiry, for example those relating to some changes to a licensee company's articles.

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36. The Council suggests that these powers immediately to decide or dismiss applications should not be exercised unless the Tribunal has no doubts that the application fits the description. It also recommends that their use should be subject to the checks that the application be on a public file, that reasons are to be available for the decisions, and that the making of a decision is given at least the minimum advertisement provided in the regulations (see below paragraphs 38-41). Where the Tribunal contemplates making such a decision adversely to a person concerned in the application, it should where appropriate give him prior notice, receive his comments, and if necessary conduct a conference or preliminary hearing on the question (see below paragraphs 64-66).

37. RECOMMENDATION 4 (a) The Tribunal should be empowered by the regulations:

(i) to refuse an application which does not comply with the regulations or is scandalous, vexatious, frivolous or an abuse of the Tribunal's proceedings, or which does not disclose information supporting the decision sought; and

(ii) to grant or refuse an application clearly of a minor nature;without first advertising the application.

(b) The regulations should provide that where the Tribunal makes a decision under (a) it shall within 14 days thereafter advertise the decision in the prescribed manner together with particulars of the times when and places where copies of the application, supporting documents and the reasons for its decision may be inspected by members of the public, provided that the Tribunal may, if it thinks fit, withhold an application of the kind referred to in paragraph (a)(i) of this recommendation from public inspection.

Advertisement and other Notices38. Except where the Tribunal makes a decision under the power recommended above, every application should be advertised so as to provide an opportunity for members of the public to make submissions. Advertisement should occur as soon as possible, but allowing the Tribunal sufficient time to consider whether the application complies with the regulations and to make any ancillary orders. The methods by which applications should be advertised and the places at which documents should be made available for public inspection will vary according to the nature of each individual case. Thus the Council would expect that an inquiry of general and substantial significance (e.g. as to the determination of standards) would be advertised in one or more nationally circulating newspapers and at least one major newspaper in each capital city, and that an inquiry of a more local character (e.g. the renewal of a particular licence) would be advertised in at least one major newspaper in the capital city of the relevant State and, where the region concerned is outside the capital city, in one or more newspapers circulating within the region. Similarly, for inquiries of general and substantial significance documents should be available for inspection at

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least in all capital cities. For those of a local character inspection should be possible in at least the appropriate capital city and, where relevant, one or more suitable regional centres. In addition, documents for all inquiries should be open to inspection at the office of the Tribunal. These are merely examples of particular types of inquiry. A wide variety of considerations will need to be taken into account. Thus in some inquiries the significance of networking arrangements may suggest the desirability of advertising and making documents available in some States but not all. The Council sees no merit in trying to anticipate and provide in the regulations for all the circumstances which might arise. In its opinion these matters are best left to the Tribunal to determine in the light of the circumstances of each particular case. The regulations should simply provide for a minimum requirement that each application, the arrangements for inspection of documents, and the final date for receipt of submissions be published in the Government Gazette, in one or more newspapers and in any bulletin which may be published by the Tribunal (see next paragraph). This minimum advertisement would also satisfy the requirement that the Tribunal advertise decisions disposing of or suspending proceedings without full inquiry (see above paragraphs 35-37 and below paragraphs 62-63).

39. The Council would expect the Tribunal to develop a range of methods of advertisement which can provide for differences of treatment according to the nature of particular inquiries. In inquiries in which the Tribunal wishes to ensure widespread public notice repeated advertising may be desirable, and the Council also supports provision for the broadcasting by licensees of announcements relating to inquiries which concern them. Provision for this was in the Broadcasting and Television Amendment Bill No. 2 1980. The Council was informed by the Tribunal that it was contemplating publication of a regular bulletin which would contain notice of inquiries. This is supported by the Council, which also suggests that the Tribunal could consider establishing and maintaining a mailing list of people to whom notices of inquiries are to be sent, with facility for people to be registered on the mailing list, either generally or in relation to specific types of applications.

40. Apart from advertisement, the Council recommends that, where any application directly concerns any licensee and was not made by the licensee, the Tribunal should expressly notify the licensee of the application at the time that it advertises. It also recommends that for each inquiry the Tribunal should establish a register of all persons who make written submissions and of all other persons who ask to be kept informed of future developments. This register would constitute a mailing list of persons to whom circulars should be sent to inform them of significant steps in the development of the inquiry. In particular, such persons should be informed of decisions to abridge the normal inquiry procedures or to hold public hearings. Circulars to persons on the register would be additional to newspaper advertisements advising the public of hearings and any adjournments thereof.

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41. RECOMMENDATION 5 (a) The Regulations should provide that, except where it makes a

decision pursuant to the power proposed in Recommendation 4, the Tribunal shall within 28 days of receipt of an application advertise the application in the prescribed manner, including particulars of:(i) the nature of the application;(ii) the times and places at which copies of the application and

other documents may be inspected by members of the public;(iii)the times within which persons may make submissions to the

Tribunal in relation to that application; and(iv) the fact that a register will be kept of the names of all persons

wishing to receive notices relating to the inquiry.

(b) The Regulations should prescribe that where any matter is required to be advertised it shall be advertised by notice in the Government Gazette, in any official bulletin published by the Tribunal, in at least one newspaper, and by such other means (if any) as the Tribunal may determine. The Tribunal should also be empowered in its discretion to make additional advertisements and to direct licensees to advertise matters which concern them.

(c) The Regulations should require the Tribunal as soon as practicable to give written notice to a licensee of any application made by another person or of any inquiry commenced by the Tribunal which directly concerns that licensee.

(d) The Regulations should require the Tribunal to maintain a register for each inquiry of persons who are to be sent notice of all significant steps taken in the course of that inquiry.

Submissions42. The Council sees provision for members of the public to inspect applications and their supporting documents, and to make full written submissions concerning them, as the central right of 'participation' offered in the inquiry procedure. At early stages of an inquiry it will not be necessary for the Tribunal to exclude from the file written submissions which may seem incomplete or irrelevant. This may be left until it must determine the parties for any hearing. The Council has accepted the suggestion made by most of the submissions to it that rights of participation at a hearing should be limited to persons who have participated properly in the documentary stage of an inquiry. A proper written submission should fully set out all that the person making the submission requests the Tribunal to do, and disclose in writing the full case he is making out. In particular, it should provide specific details of any request to the Tribunal for the exercise of any of its substantive powers. A submission should also, where appropriate, set out any request for the Tribunal itself to pursue investigations in a matter, or give notice that, whether or not the person making the submission has evidence of his own, he has grounds for requesting oral examination of another party in a hearing, in which case it should state those grounds.

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The general provisions relating to documents discussed in paragraphs 46-55 below should apply to submissions and their supporting documents.

43. RECOMMENDATION 6 (a) The regulations should prescribe that the time for making

submissions is 6 weeks from the date of first advertisement of an application or such other time as the Tribunal may specify in the advertisement but should give the Tribunal' power to extend the time when appropriate.

(b) The regulations should prescribe the form of submissions, and require submissions to specify particulars of any facts supporting allegations made and any substantive or procedural orders or directions sought from the Tribunal. The Tribunal should have power to permit amendments where reasonable in the circumstances.

(c) The regulations should require submissions so far as is possible to be accompanied by the evidence relied upon, which is to be in the form of written statements of proposed witnesses or of other documents, but should empower the Tribunal to permit the introduction of additional material if it is reasonable to do so in the circumstances.

Replies and further DocumentsAt present the Act provides facility for applicants to reply to submissions filed with the Tribunal on applications for grants and renewals (ss.82 (4), 86 (6)), but does not require them to do so. The Council considers that there should be an obligation on all applicants for the exercise of any of the Tribunal's substantive powers to consider submissions filed with the Tribunal and to provide adequate answers in writing. This would round off the documentation stage, and should ensure that the Tribunal is able to assess the real areas of controversy and the relevant issues for the remainder of the inquiry. This process will enable the Tribunal to determine which inquiries may be disposed of without a hearing, and those in which a hearing becomes necessary will be more easily handled. Since the time required for preparing replies will vary from case to case, the Council considers that documentary reply and assessment should not be controlled by arbitrary time limits, but that the Tribunal should have the power, when directing an applicant or submittor to file further documents, to impose a time requirement for his doing so.

45. RECOMMENDATION 7 (a) The regulations should require applicants for the exercise by the

Tribunal of its substantive powers, and should permit other persons making submissions, to reply to documents lodged by other people so as to provide answers to all significant and relevant statements with which they disagree.

(b) The regulations should empower the Tribunal of its own motion or on request to require by such date as it may determine further

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written information or comments from applicants or persons making submissions on any document filed with the Tribunal, so as to ensure that issues are clearly defined, and if possible that evidence is reduced to a documentary form.

General Provisions for Documentation46. The stress placed in the Council's recommended procedure on the use of documents is intended to preserve the public's full right of access to and involvement in the process. This does, however, give rise to some problems to be dealt with. Provision will need to be made in the regulations in relation to confidentiality and privilege, and the process must limit as far as possible the financial burden on the Tribunal, applicants and persons making submissions, arising from the copying and circulation of documents. In this section of the report, the Council makes recommendations on these and other general, matters relating to applications, submissions and all other documents.

47. Two matters may arise before the Tribunal will receive a document on to the file. Although the Council does not consider it necessary for the Tribunal to examine rigorously every document sought to be filed, there should be provision for it to refuse to consider and make available for inspection documents, including submissions, which are scandalous, frivolous, vexatious or an abuse of the Tribunal's proceedings (as, for

example, in the present s.86 (8)). Because all documents filed will normally become available for public inspection, applicants and others may at times not wish to file a document unless they have obtained a direction from the Tribunal preserving the confidentiality of the document. Such directions may be made under the present section 19, which the Council considers properly confers a sufficient discretion upon the Tribunal to protect confidentiality. This section may, however, need to be made clearly applicable to the other stages of an inquiry proceeding as well as to any oral hearing.

48. RECOMMENDATION 8(a) If a submission or other document tendered at any stage of an

inquiry proceeding is scandalous, vexatious, frivolous or an abuse of the Tribunal's proceedings, the regulations should empower the Tribunal to refuse to consider any such application, submission or document, and to order that it shall not be available for inspection.

(b) Section 19 of the Act should be amended to make it clear that the Tribunal's power to make confidentiality orders commences as soon as an application has been lodged with the Tribunal and continues throughout the course of any subsequent inquiry.

(c) The regulations should permit any person wishing to file a document in an inquiry to apply to the Tribunal for an order under section 19 of the Act at any stage prior to or during an inquiry.

49. One question considered by the Council is the extent to which an immunity from defamation or other liabilities should attach to the publication of documents filed with the Tribunal and to oral proceedings

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in an inquiry. It may seem reasonable to protect with an express statutory privilege proceedings at hearings, since they are conducted under the immediate control of the Tribunal and the Tribunal can thus guard against abuse of the privilege. But this control is more remote in relation to documents filed and made available for public inspection during the preliminary stages of an inquiry, when the time delay between allegation or criticism and reply is generally much greater. At present, sub-section 23 (2) gives persons 'appearing' before the Tribunal the protection and immunity of barristers and witnesses appearing in the High Court, and paragraph 24(b) debars actions for defamation in respect of the publication of a fair and accurate report of 'proceedings before the Tribunal at an inquiry'.

50. The Council recommends that the existing statutory privilege under the Act should apply to all documents filed in an inquiry, but only once a hearing has commenced or once the Tribunal has decided to dispense with a hearing, so that it does not extend to earlier publications. It notes that earlier publications solely for the purpose of public participation in an inquiry may be otherwise protected by the various laws of defamation prevailing in Australia.

51. RECOMMENDATION 9Sub-section 23(2) and paragraph 24(b) of the Act should be amended, so that their protection and immunity apply only once a hearing has commenced or once the Tribunal has decided to dispense with a hearing. Once one of these events has occurred the protection and immunity should extend to all earlier aspects of the proceedings, including all documents filed.

52. As was indicated above, subject to provision for confidentiality all documents (other than those withheld pursuant to Recommendation 8) should be available for public inspection at places accessible to people likely to be interested in the proceeding. The Council considers that given such access, it is not necessary for participants or the Tribunal to be burdened by being obliged to give copies of documents to other people free of charge. It has, however, recommended in Recommendation 5 above the keeping of a register of persons to be informed of significant steps in an inquiry, and also recommends below that the Tribunal should, if possible, have facilities to sell copies of documents. It may be expected that informal exchanges of documents will occur without provision for this in the regulations. The Council does not believe that persons who submit documents should be obliged to provide multiple copies for the use of the Tribunal, though the Tribunal should none the less be free to seek the co-operation of the parties, particularly those who apply to it for the exercise of any of its substantive powers, in providing additional copies. In particular where an applicant is a licensee it should generally be expected to provide sufficient copies of its application for the Tribunal's purposes.

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53. RECOMMENDATION 10(a) The regulations should specify that applications, submissions and

documents filed in support (other than those withheld pursuant to Recommendation 8) are automatically to form part of the inquiry file available for public inspection.

(b) The regulations should not require more than one copy of applications, submissions and supporting documents to be filed with the Tribunal.

(c) The regulations should provide that from the date of advertisement of an application copies of the inquiry file are to be made available for inspection by members of the public at the Tribunal's central office and at such other places as are determined by the Tribunal.

(d) No persons, including those lodging applications, submissions and documents, should be entitled to receive copies of material filed, but if possible the Tribunal should have facilities for providing copies on request for a reasonable fee.

54. The Council has accepted suggestions by some people who made submissions to it that the procedure should make provision for particulars to be available of the composition of unincorporated associations participating in inquiries and of their objects of association.

55. RECOMMENDATION 1 1(a) The regulations should provide that where an application or

submission is made on behalf of an unincorporated association, it should contain:

(i) either a list of the members of the association or, where the membership exceeds 20, a list of its officers and a description of its membership, and

(ii) a statement of the objects of the association.

(b) The Tribunal should maintain and make available for public inspection a register of unincorporated associations wishing to make submissions or applications from time to time, with particulars as in (a). Provided the particulars of an association are current, reference by it to the register would be sufficient compliance with requirement (a) above.

Assessment of Documentation56. As was indicated above, the Council envisages that soon after the closing date for written submissions in an inquiry the Tribunal will assess the file to consider whether the inquiry should be disposed of, or whether further steps should be taken. If the Tribunal decides not to take a step which will conclude the inquiry, similar assessments should be repeated during the subsequent course of the inquiry. Options available to the Tribunal would be: directing further replies or documentation from applicants or other persons making submissions; arranging for other types of investigation of matters arising out of the documentation see below paragraph 100); redefining the inquiry's terms of reference with further advertisement and submissions (see below paragraphs 58-59):

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finalising the inquiry without a hearing (see below paragraph 60); suspending or deferring further proceedings in the inquiry (see below paragraph 61); arranging conferences (see below paragraphs 64-66); calling preliminary hearings (see below paragraphs 70-71); or calling a final hearing (see below paragraphs 72-76). Although there would be opportunity for applicants and persons making submissions to indicate to the Tribunal in their documents which of these options they consider should be taken, the Tribunal should not be obliged to consult them during these assessments, and there appears to be no need for the assessments themselves to be prescribed in regulations. It could be expected that deciding which options to take would not normally be difficult, since they would emerge fairly clearly from an examination of the file documents. However, where the Tribunal contemplates taking a particular course which may be controverlial, it could hold a preliminary hearing or conference on the question.

57. RECOMMENDATION 12After the expiry of the advertised closing date for submissions, and if necessary at appropriate subsequent stages, the Tribunal should assess the file and decide which of the following steps should be taken:(a) requiring that replies or further documents be provided by

applicants or other persons making submissions;(b) arranging for an investigation to be undertaken by or on behalf of

the Tribunal;(c) redefining the inquiry's terms of reference, with further

advertisement and the opportunity of making further submissions;(d) finalising an inquiry without holding a hearing;(e) suspending or deferring further proceedings;(f) arranging a conference with such applicants and/or other persons

making submissions as it considers appropriate;(g) arranging a preliminary hearing to determine the issues and/or

procedures for a hearing; or(h) arranging for a hearing.

Redefinition and Readvertising58. As was suggested above (paragraph 30), the terms of reference of an inquiry will normally be set by the application requesting the Tribunal to exercise specified powers. Although persons making submissions would be able to request that the Tribunal make different decisions from those applied for, it may be expected that they normally will not extend the terms of reference by bringing other powers into question, and that the Tribunal will not itself usually wish to do so. In these cases, the Tribunal can be confident that it can proceed to identify the particular issues emerging from the documents and to reach its decision either with or without a hearing. However, the Council foresees that at times the submissions, other applications, or its own investigations may require the Tribunal to recast the shape of the inquiry by extending or limiting the terms of reference so as to reflect the real concerns of the parties and the Tribunal in the inquiry. Thus, for example, it may consider it appropriate

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to consolidate two or more applications into one inquiry; or to divide the subject matter of an application into two or more inquiries; or to incorporate additional terms which it finds convenient; or to suspend or defer consideration of part of the subject matter of an application to permit its incorporation into a later inquiry; or to dispose of parts of that subject matter without a hearing. The test of what action should be taken in such a situation would be whether the Tribunal can be confident that the advertisement of the original application, or of several applications which are to be consolidated, gave sufficient notice of the types of decision which will be under consideration in the inquiry. If the notice given has not been sufficient to allow opportunity for full participation, then new terms of reference should be stated by the Tribunal, advertised in the prescribed manner, and an opportunity offered for new submissions to be made.

59. RECOMMENDATION 13 (a) The Regulations should empower the Tribunal following the closing

date for submissions in an inquiry to state new terms of reference which may be wider or narrower than the terms of the application previously advertised.

(b) The Regulations should provide that, where the Tribunal states new terms of reference substantially different to those set by the application, it shall advertise them in the prescribed manner, and allow opportunity for further submissions to be made.

Deciding without a Hearing and Suspending or Deferring the Proceedings60. It was suggested above that the documentation stage of an inquiry should normally be completed before the Tribunal makes a decision whether to exercise one of its substantive powers. Once an opportunity for public involvement at this stage has been provided, the proceedings in many cases could properly be decided without further investigation or hearings. The Council therefore recommends that the procedure include facility for finalising inquiries without a formal hearing. It suggests that the Tribunal should be able, but not required, to decide an application without holding a hearing where no relevant opposing submission or application has been received, or where no substantial issue of controversy or public concern arises. The first of these tests reflects the present discretions conferred by sub-sections 83(2) and 86(8), and the Council considers that the second is desirable to allow the Tribunal to concentrate upon those inquiries in which oral proceedings will serve a purpose. It may be expected that, on this test, the Tribunal would continue to hold hearings into all competing applications for the grant of a new licence, and into all applications for renewal which have attracted any serious criticism of a licensee from the Tribunal or from a person making a submission. Although it should not be a requirement of the regulations, the Council suggests that the Tribunal should not exercise its discretion to dispense with a hearing when submissions of any substance have been received, without informing all persons who have lodged

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submissions of its intention and offering them the opportunity to request a conference. The holding of a conference should, however, be at the discretion of the Tribunal.

61. The Council also suggests that in some circumstances it may be appropriate for the Tribunal to suspend a proceeding, or to defer the holding of a hearing. Such circumstances could arise, for example, when there is an application to impose sanctions on a particular licensee for alleged breaches and when that licence will soon fall due for renewal. The Council considers that in such circumstances it could be appropriate for the Tribunal to delay hearing the application until the later renewal hearing. The power could also be useful where the Tribunal wishes to co-ordinate inquiries into the making of general standards.

62. The Council considers that decisions to dispense with a hearing or to suspend or defer a proceeding should be subject to the checks of being on the public file, of reasons being available and of being advertised in the prescribed manner (see paragraphs 38-41 above).

RECOMMENDATION 1463. The regulations should provide that:(a) at any time subsequent to the closing date for submissions the

Tribunal may in its discretion determine that it will proceed to a final decision in the inquiry without a hearing or other proceeding;(i) where no submissions opposing the orders sought in the

application or the terms of reference or seeking substantially different orders have been received by the Tribunal;

(ii) where the Tribunal determines that all submissions received are irrelevant to matters to be decided; or

(iii)where the Tribunal determines that the submissions and any of its own investigations have raised no substantial issue of controversy or public concern;

(b) the Tribunal may at any time subsequent to the closing date for submissions suspend the proceedings or delay holding a hearing where it appears reasonable to do so;

(c) any decision made under (a) or (b) is to be advertised within 14 days in the prescribed manner and the reasons for it placed on the public file.

One member of the Council (Mr Justice Kirby) takes a slightly different view from that expressed in Recommendation 14. In his opinion every case of an application for grant or renewal of a licence should require a hearing in public. This view is based in part upon the principle of open licence procedures espoused in the Green Report and expressed by successive Ministers; in part upon the view that the Tribunal should not be reduced merely to responding to criticism of broadcasters but should fulfil the positive and creative role envisaged by the statute and in part because of fears that the procedures proposed would result in very few public hearings or in arid argument about the statutory preconditions to a public hearing.

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The Green Report stressed that:Since broadcasting frequencies are scarce national resources, and since the control of such frequencies confers upon broadcasters both a valuable asset and a considerable measure of public influence, the licensing process must be seen to be a fair and open one. (p.69)

Introducing the 1977 Amendment Bill, the then Minister said:The Tribunal must be able to justify publicly its deliberative and decision-making activities and in a similar manner broadcaster will be made to account, at renewal hearings, and in public for their programming performances. (Commonwealth Parliamentary Debates (House of Representatives) October 1977, vol. 107, p.2005)

These are thoroughly desirable developments for Australian broadcasting. In this member's view they should not be undone under the guise of procedural reforms. The danger of the proposal in Recommendation 14 is that it could result in very few public hearings. Although the Broadcasting Control Board had a discretion to hold a public hearing, in the 'clubbish' atmosphere of broadcasting it exercised that discretion once only in 20 years. In default of public answerability of station management to the Tribunal in a public forum for the public benefit they enjoy, licence renewals may effectively be returned to lawyers and administrators, with little public scrutiny as urged by Green and by successive Commonwealth Ministers. The present Act does not reduce the Tribunal solely to a dispute resolution body. Yet the procedure devised by the majority envisages a Tribunal which is essentially reactive to public and other complaints and not creative and resourceful in the improvement of broadcasting standards in Australia. However well intentioned, the proposal in Recommendation 14 will also probably generate a thoroughly unproductive body of law about what constitutes a 'substantial issue of controversy or public concern'. This is precisely what has occurred in the United States, where the criterion in s.309 of the Communications Act of 1934 (U.S.) is similar, namely whether submissions raise 'substantial and material questions of fact'. With little benefit to anybody (except communication lawyers), arid legal disputes are fought out as to whether an objection falls within the statutory pre-conditions to warrant a hearing. The result has been a legal quagmire. There has been no discernible benefit to the community or to broadcasting.

The concern of the Recommendation is a natural one. It relates to the costs of present renewal arrangements. However, by simple procedures of consolidation or sequential listing of renewal hearings and administrative arrangements within the Tribunal, together with provision for simplifying inconsistent renewal hearings, costs of renewal hearings in public could be contained. The decisions made by the Tribunal to grant or renew a licence are vastly more important, both economically and socially, than all but a few oecisions of the courts and tribunals of this country. A too tender concern for the time or costs involved results in this member's view from an under-estimation of the importance of the

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broadcasting licence or a misconception of the role of the Tribunal and the function of public hearings. It has resulted in a Recommendation which is designed to and would significantly reduce the number of such hearings in public. Furthermore, it may impose a heavy onus on members of the Australian community to generate litigation before securing a public hearing before the Tribunal. The whole effort of recent broadcasting law has been to get away from legalism. Recommendation 14 will assure it. It is not too much to ask the management of the beneficiary of a broadcasting licence to account publicly every 3 years for their stewardship, however briefly. But if it is not considered appropriate to require public hearings in renewal applications generally, it should at least be required in respect of renewals in the case of metropolitan stations. A distinction is already drawn in the Act between 'metropolitan' and other stations (see ss.90 (1), 90 and 105AA).

Conferences64. The Council has agreed with the suggestion of many people who made submissions to it that at times the Tribunal could advantageously conduct conferences preliminary, or as an alternative, to a formal hearing. The emphasis in conferences would be upon discussion and conciliation, rather than adjudication upon the exercise of Tribunal powers. They would be used inter alia where complaints or criticism of the performance of licensees in particular or general give rise to matters of real concern in broadcasting practice, but prima facie would not justify the exercise of regulatory powers. The objective of such conferences would be to allow participants with different views to confer and if possible to reach agreement upon desirable practices or solutions to problems. Conferences may not require the participation of lawyers, or rigorous direction towards precise issues settled in advance, and could proceed with more expedition and cheapness than full hearings. Where the number of persons involved is small they could be conducted by telephone. Many matters now raised at renewal hearings could more readily be determined in conferences.

65. In holding conferences, the Tribunal should be given power to direct any of the persons who filed documents in the proceeding to attend, and to specify the matters to be canvassed. The Council considered whether provision should be made for conferences to be chaired by an officer of the Tribunal as an alternative to a member of the Tribunal, but decided that their conduct should be the responsibility of a Tribunal member.

66. RECOMMENDATION 15The regulations should empower the Tribunal in its discretion to conduct conferences, and should contain provisions that:

(a) the Tribunal may direct any person who has filed a document in the inquiry to attend;

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(b) when calling a conference the Tribunal may specify which of the matters raised in the inquiry documentation shall be canvassed at the conference;

(c) a conference shall be chaired by the Chairman of the Tribunal or by a member of the Tribunal chosen by the Chairman;

(d) conferences shall be public except where the chairman of a conference otherwise direct;

(e) unless otherwise agreed by all participants any statements made in a conference shall be without prejudice in the inquiry proceedings;

(f) conferences shall be conducted with minimal formality and no transcript shall be taken without the consent of the parties and the leave of the chairman, but any agreement reached at the conference shall be recorded on the inquiry file.

Interim Extensions67. The Council has noted that as well as needing power to grant extensions of procedural time limits, the Tribunal should have power to extend the strict time limits relating to the exercise of two of its substantive powers. These powers are the power to renew licences, and the power to order divestiture of shareholding interests under ss90J (3) and 92F (3). At present, these provisions bring some inquiries under the pressure of an imminent expiry of the licence or of the 3 month period for divestiture orders, and this may mean that the Tribunal's investigation of complex or important matters is rushed or the matters not fully considered.

68. The circumstances causing an inquiry to come under pressure of these limits will often not appear until preliminary documentation is concluded and the issues have been clarified. The Council agrees with suggestions made to it in submissions by the Tribunal and Department that there should be power to make orders extending the time limits to enable an inquiry to proceed reasonably.

69. RECOMMENDATION 16Amendments to the Act should:(a) empower the Tribunal at any time after the commencement of an

inquiry into the renewal of a licence to make orders extending the time for the expiry of the licence until the conclusion of the inquiry; and

(b) amend sections 90J(3) and 92F(3) to provide that the 3 month period mentioned therein is not to run during the currency of an inquiry by the Tribunal into the transaction or related transactions.

Preliminary Hearings70. It appears to the Council that much of the dissatisfaction about the Tribunal's hearings resulted from the lack of preparation with which the Tribunal approached the hearing. Much of the time of important hearings was spent in deciding procedural matters such as: who had standing to participate; what were the relevant issues: what evidence was

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admissible or necessary; what witnesses were to be called and how they were to be examined; what documents were to be produced on summons; and what was to be the order of events at the hearing. The Council considers that these matters should properly be determined at preliminary hearings held by the Tribunal to give directions which will guide a hearing. The Council also envisages that preliminary hearings may be used for discussion on other procedural steps which might be taken by the Tribunal, for example: stating new terms of reference, disposing of the proceeding without a hearing, holding conferences or conducting further investigations. But it suggests that if only a few people have filed documents and it is possible to reach an agreement informally by correspondence or telephone, then these procedures should be explored before preliminary hearings are held.

71. RECOMMENDATION 17The regulations should empower the Tribunal to conduct preliminary hearings where they appear necessary or desirable to assist the expeditious determination of an inquiry. At these hearings the Tribunal should receive and consider comments from persons who have filed documents, and should have power to give appropriate directions as to the procedures to be followed in an inquiry, including:(a) disposing of the proceedings without a further hearing;(b) suspending or deferring further proceedings in the inquiry;(c) calling a conference;(d) stating new terms of reference, and arranging for advertisement

and the opportunity to make submissions;(e) settling the relevant issues arising out of applications, submissions

and other documentation which are to be canvassed at the hearing;(f) ruling upon the persons whose submissions are sufficiently

complete and relevant for them to have standing to appear at a hearing;

(g) directing two or more parties wishing to present substantially similar cases to make a joint appearance at a hearing;

(h) directing the consolidation of two or more proceedings where this is convenient;

(i) ordering the proceedings, including the order in which parties are to be heard;

(j) permitting amendments or additions to applications or submissions;(k) on procedures for verifying the documentation on the file, where

this is necessary;(l) on the form of any additional evidence to be accepted at the

hearing, including written statements, reports of telephone conversations and the witnesses who will be heard;

(m) on discovery and inspection of documents held by the parties;(n) on procedures for the parties to agree upon facts;(o) on the nature and conduct of any cross-examination necessary at the hearing;(p) receiving documents upon summonses;(q) setting timetables and ordering extensions of time limit;

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(r) giving directions or rulings upon any other matters raised by the Tribunal or the parties concerning the course to be followed at the hearing.

Where such preliminary hearings are held, they should be conducted in public except where the Tribunal otherwise directs, and the results recorded on the public file.

Hearings72 The Tribunal's current practices for giving notices of the times and locations of hearings were not criticised in submissions to the Council, and do not appear to raise problems. Except to the extent that this report expressly recommends amendment, the current provisions of the Act in relation to proceedings at inquiries are considered by the Council to be appropriate for hearings under the proposed procedure.

73. The Tribunal's inquiries are at present conducted on the basis that a hearing will be the sole occasion for allowing participation, receiving evidence and deciding issues. The problems caused by expecting so many things to be achieved in a brief time gave rise to most of the criticisms received by the Council. The Council has proposed a more staged procedure, in which hearings would only be held where they were clearly necessary, and would always be thoroughly prepared in advance. It expects that this procedure will solve most of the difficulties encountered in the hearings conducted by the Tribunal.

74. The Council has been supported by most of the submissions it has received in recommending a more structured inquiry procedure. People from both the industry and the public interest groups who have participated in Tribunal hearings pointed to the problems they encountered through the absence of procedures to ensure an orderly proceeding, and requested procedural rules to protect their rights of participation and to ensure natural justice to all concerned. The Council therefore feels confident that the additional procedural rules recommended by it will assist the Tribunal and those concerned in its inquiries, rather than hamper them. But to some people they may appear to be introducing formality into proceedings which should be informal, and it is useful to quote a passage from the Franks Committee which indicates the compatibility of a formal procedure and an informal atmosphere:

There has been considerable emphasis, in much of the evidence we have received, upon the importance of preserving informality of atmosphere in hearings before tribunals, though it is generally conceded that in some tribunals, for example the Lands Tribunal, informality is not an overriding necessity. We endorse this view, but we are convinced that the attempt which has been made to secure informality in the general run of tribunals has in some instances been at the expense of an orderly procedure. Informality without rules of procedure may be positively inimical to right adjudication, since the proceedings may well assume an unordered character which makes it difficult, if not impossible, for the tribunal properly to sift the facts and

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weigh the evidence. It should here be remembered that by their very nature tribunals may welt be less skilled in adjudication than courts of law. None of our witnesses would seek to make tribunals in all respects like courts of law, but there is a wide measure of agreement that in many instances their procedure could be made more orderly without impairing the desired informality of atmosphere. The object to be aimed at in most tribunals is the combination of a formal procedure with an informal atmosphere. We see no reason why this cannot be achieved. On the one hand it means a manifestly sympathetic attitude on the part o1 the tribunal and the absence of the trappings of a court, but on the other hand such prescription of procedure as makes the proceedings clear and orderly. (Report of the Committee on Administrative Tribunals and Inquiries, paragraph 64 (Cmnd. 218, 1957)).

75. The desirability that hearings be conducted in an atmosphere of informality non-confrontation and public accessibility, is of course indisputable. Specific methods for achieving it are, however, mostly outside the scope of the Council's study. Much depends upon the competency of members of the Tribunal to manage the types of hearings held by the Tribunal. Other factors involve financial and practical considerations. The Council would urge the Tribunal to give serious attention to the adequacy of its hearing rooms, in terms of accommodation for parties, witnesses and spectators, and in particular to the physical arrangement of the hearing room furniture.

76. RECOMMENDATION 18The Tribunal should continue to aim to achieve an informal hearing atmosphere, and provide adequate facilities to enable the full participation of all parties in the view and hearing of the public.

Standing to Appear at Hearings77. Most submissions suggested that the Tribunal's past practices on granting or refusing permission to appear at its hearings presented the Council with its greatest problem. They characterised the Tribunal's actions as inconsistent, erratic and unprincipled, intimidating so as to discourage the participation of interest groups, or based on unintelligible guidelines which had no basis in the legislation. Several submissions drew attention to the legal difficulties in the present provisions of the Act, particularly sections 22, 22AA and 25 in relation to the term 'having an interest in the proceedings'. Other submissions pointed out that the procedures adopted by the Tribunal to limit those people allowed to participate were ineffectual, since persons excluded could still ventilate their views in public.

78. The Tribunal's problem stems from the difficult provisions of the Act conferring rights of participation in proceedings. These are sections 22, 22AA, 25(3) and 25AA, which state:

22. In proceedings before the Tribunal at an inquiry under this Division, a person who is directly concerned in the proceedings, and, with the approval of the Tribunal, any other person having an interest in the proceedings, may be represented by a barrister, solicitor or agent, who may, subject to any directions of the Tribunal given under sub-section (1) of section 25, examine witnesses and address the Tribunal on behalf of that person.

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22AA. Where a person does not have an interest in proceedings before the Tribunal at an inquiry, the Tribunal may declare that the person is not entitled to appear before the Tribunal at the proceedings.

25(3). Subject to section 19, the Tribunal shall ensure that every person having an interest in proceedings before the Tribunal at an inquiry is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceedings and to make submissions in relation to those documents.

25AA. Where the Tribunal has held an inquiry in pursuance of section 83, 86, 89, 90J, or 92F, it shall cause a copy of its decision to be served on each person having an interest in the proceedings.

79. Although the Department suggests that s.22AA was intended to show that the Tribunal had a discretion to allow persons to appear who did not have an 'interest', it has not been used in this way, but rather as an indication that only persons having an 'interest' could participate. This has put pressure on that vague term, and interpretations have been presented to the Tribunal (and the High Court) which argue that it encompasses social interests in broadcasting regulation and consumer needs, as well as the economic and property interests normally recognised by Courts in deciding locus standi. Until recently no authoritative rulings have been given by the Tribunal on this point.

80. In the much criticised 'Sydney' rules which 'guided' the Tribunal until June 1980, the Tribunal adopted an interpretation of the Act which said that even if people wishing to present a public interest case had 'an interest' within the meaning of the Act, the Tribunal still had a discretion to refuse them standing. The Tribunal then selected some of these people as 'approved parties' and gave them full rights of participation. It seems to the Council that this approach drew on a questionable view of s.22, and confused the question of what persons have an interest with the secondary question of how to restrict their involvement to relevant issues.

81. Recent developments have not, in the Council's view, offered a better solution. On the legislation side, the amendments relating to s.18 inquiries introduced in the 1980 amendment, and also foreshadowed in the 1980 Bill No.2, approached the problem by stating that ss.22, 22AA, 25(3) and 25AA do not apply, and allowing instead the Tribunal 'in its absolute discretion' to decide who may appear. This drastic solution may be acceptable in general inquiries unrelated to the exercise of powers, but it would be inconsistent with the second objective of participation suggested in paragraph 17 above to adopt it in normal inquiry proceedings. This is because it recognises no rights of participation and gives no encouragement to members of the public to prepare cases for presentation to the Tribunal. On this basis, even a less than absolute discretion which permits the Tribunal to allow some people to participate more fully than others is also unacceptable, unless non-discriminatory and objective criteria can be devised to control it.

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82. For the same reason, the recent course suggested by the Tribunal in its ATV 10 Melbourne decision is unsatisfactory. In that case, the Tribunal said:

In the absence of a ruling from the High Court the Tribunal can only form its own interpretation of 'interest' from the context of the Act and the relevant authorities. Clearly if a person has an economic or proprietary interest of the nature of special interest as defined in the Aust. Conservation Foundation case he would have an interest pursuant to s.22 and s.25(3). But should it extend beyond that bearing in mind, as the High Court pointed out in the 2HD case, the public interest is the purpose of the Act. We agree that what is involved under s.25(3) is an objective judgment of whether a person has the requisite 'interest' and under s.22 the exercise of a discretion of whether to approve representation. Often the two may merge because the nature of the person 'interested' may mean that to present its case it has to be represented by an agent. We believe that in proceedings before the Tribunal it may be appropriate for a person or group to present a 'public interest' case which is not an economic or proprietary based interest. It is then a matter of the Tribunal determining in the circumstances of particular proceedings whether that is appropriate and if so, which person or persons, where there are a number, most substantially have that interest and are in a position to best present that case and thereby come within s.25(3) and 22. Others who would not in the circumstances have that interest could still be called as witnesses by the Tribunal or a person or group presenting a public interest case, if their evidence was relevant to the proceedings. This was the concept of the 'Tribunal witness' referred to earlier. We do not believe, as submitted by Mr Masterman, that the concept of interest can be extended in every case to any viewer within the requisite viewing area to automatically qualify him to tie a party under the Act. In this inquiry the Tribunal considered that the ALP represented the 'public interest' interest in the proceedings and that, as the other groups did not have any economic or proprietary interest but really desired to present a similar 'public interest' case, as indicated by the High Court, it was appropriate to make the declarations pursuant to s.22AA.

83. The Tribunal has provided an elaboration of this approach in its submission to the Council. It suggested an amendment to the Act or appropriate regulations to provide:(a) apart from an applicant, any person who desired to participate in

any proceedings in any capacity (e.g. party or witness) would be required to file a submission;

(b) any persons who can demonstrate that he has either a pecuniary or proprietary interest in the proceedings shall be admitted as a party to the proceedings;

(c) based on the content of the submissions and the type of inquiry, one or more groups at the discretion of the Tribunal shall, if the Tribunal feels it could be assisted in its investigatory role, be admitted as a party or parties to represent the Public Interest;

(d) those persons who have tiled submissions which the Tribunal has ruled as relevant may be permitted to give further evidence relating to the contents of their submissions if they so desire. However, unless exceptional circumstances exist, such persons would not be admitted as parties to the proceedings unless they came within paragraphs (b & c);

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(e) where a submission raises a specific question that the Tribunal believes should be investigated the submitee may be permitted limited rights of cross-examination, confined to the specific area concerned. This would be additional to giving evidence on the submission. However, such persons would not become parties to the proceedings.

84. In contrast to these views, the Council has rejected controls on standing by a categorisation of types of interests or by discretionary powers of exclusion in the Tribunal, upon the basis that these approaches are unpredictable and lead to inconsistency and the appearance of unfairness. Fairness is necessary to give reality to the Government's policy of public participation. On the other hand, the Council has also rejected the concept that no limitation should be placed upon standing, because it considers that this could lead to the unnecessary protraction of hearings and the imposition of unwarranted burdens on a licensee. It suggests that the preliminary and alternative procedures recommended by it, together with firm direction of the hearing by the Tribunal, can be used to ensure orderly and relevant hearings. It therefore recommends that all persons making relevant written submissions in accordance with the prescribed procedure should be permitted to participate as parties at hearings, provided that their participation is limited to those matters relevant to the inquiry which they have raised in their submissions. It would be expected that only occasionally could there be a danger that the number of people seeking to participate would make the proceedings. truly unworkable, and if this became a possibility the Tribunal could in preliminary proceedings direct the grouping of parties. If there is any risk involved with the recommendations, it is the view of the Council that the benefits of public participation justify the assumption of that risk.

85. The Council has been informed that during consideration of the Broadcasting and Television Amendment Bill 1980 by a Legislation Committee of the House of Representatives, the then Minister undertook to consider for inclusion in the Bill a provision for appeals to the Administrative Appeals Tribunal against a decision of the Tribunal not to allow a person to appear before it. The Minister subsequently informed Parliament that, because of the Council's review, he had decided not to include such a provision, but had directed that it be referred for the Council's consideration. The Council has received differing views on this proposal from the Department and the Tribunal, and intends to examine the matter when making its report on questions of appropriate rights of review of decisions of the Tribunal (see above, paragraph 5).

86. RECOMMENDATION 19To determine what persons are to be parties to a proceeding, and thereby entitled to appear at its hearing, and to provide for adequate control of proceedings:

(a) the Act should be amended by deleting section 22AA, and by amending sections 25(3) and 25AA so as to substitute for the

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references to 'persons having an interest' a reference to 'the parties to a proceeding as determined in accordance with the regulations';

(b) the regulations should provide that all persons are parties who have filed documents which are accepted by the Tribunal as complying with the regulations and as being relevant to the inquiry;

(c) the regulations should empower the Tribunal in its discretion to direct two or more parties who wish to present substantially similar cases to make a joint appearance at a hearing;

(d) the regulations should empower the Tribunal to confine the conduct of proceedings at the hearing to matters relevant to the issues defined by the Tribunal at a preliminary hearing, and to limit the participation of a party to those issues which he has raised in the documents filed by him;

(e) the regulations should give the Tribunal residual discretion in special circumstances to recognise as parties persons who have not lodged documents, and to allow matters to be raised at a hearing which were not identified in preliminary stages of the inquiry.

Representation of Parties87. It was accepted in submissions to the Council that there should be no limits to the right of groups or corporations entitled to participate in a hearing to be represented by an officer or member. Differences of opinion concerned whether representation by lawyers should be allowed or encouraged. The history of significant Tribunal hearings showed a clear trend from no lawyers being involved to a substantial adversary procedure directed by Queen's Counsel, and this trend was said to have discouraged participation by many public interest groups unable to afford lawyers. The Council has much sympathy with the problems of these groups, but is firmly of the view that applicants and licensees should be entitled to have their interests protected by legal representation at conferences, hearings and preliminary hearings. The Council also considers that there should be no discrimination between the parties and recommends the repeal of the Tribunal's present discretion to refuse representation for those not 'directly concerned' (s.22).

88. Representation could assist the Tribunal by testing the existence of evidence to meet the issues, and by guiding the Tribunal on alternative interpretations of the Act. However, the Council notes that, while fully court-like procedures may be acceptable at some hearings, other hearings may not require them: and the Tribunal and persons appearing before it should be alert to restrain tendencies towards unduly technical approaches resulting from the involvement of lawyers. It points out that the emphasis in its recommended inquiry procedure upon documentary and preliminary stages will mean that oral hearings will only occur where they are clearly necessary. The Council has hopes that with better preparation and little possibility of surprise or ambush at hearings, parties may feel less need to protect their interests by engaging lawyers.

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89. RECOMMENDATION 20(a) Section 22 of the Act should be repealed, and the regulations

should entitle all parties to be represented by an agent in proceedings.

(b) The Tribunal should conduct its proceedings in such a manner as to discourage unnecessary technicality, including ensuring, as far as possible, that no party suffers detriment by the absence of legal representation.

Witnesses90. A fear that Tribunal hearings may become unduly protracted underlies the arguments both that unlimited rights of standing cannot be given and that members of the public given standing should not have normal rights of presentation of witnesses and cross-examination. The Council considers that these claims are often exaggerated, and that public participation necessarily requires that members of the public with relevant cases are entitled fully to present them in tribunal inquiries. In the Council's view, to draw distinctions between people who all have relevant cases, or to give greater rights of participation to those with economic interests than to those with other social or public interests, would be inconsistent with the objectives of public participation as defined above at paragraph 16. This seems to emerge clearly from the submissions made to the Council, and from the history of the Tribunal's practices in this area. With respect to rights of cross-examination, the Tribunal first refused to allow cross-examination, then attempted to impose arbitrary 30 minute limits which were strongly criticised by the High Court, and now allows unlimited cross-examination but often subject to frequent intervention by the Tribunal.

91. In the Council's view the only acceptable approach to guarding against unreasonably protracted hearings is to make it a condition of the holding of oral hearings that there be rigorous preparatory stages. With the documentary and pre-hearing activities recommended by the Council in its procedure being fully utilised, the Council gnvisages that few difficulties would emerge from giving all persons recognised as parties equal rights of presentation of witnesses and cross-examination at a hearing. This would follow from four features of that preparation: the requirement that all material in support of applications and submissions is to be in written statements filed in advance; the procedures for assessment of evidence and requiring additional documentary material to be provided whereby the Tribunal will ensure that only significant issues of controversy are reserved for examination at oral hearings; the obligation on the Tribunal at preliminary hearings to define the issues requiring oral examination at the hearing; and the powers of the Tribunal to group persons presenting similar cases and to limit their involvement to issues raised in their documentation. With these processes, fewer witnesses will be called and the Tribunal should have fewer difficulties in directing their examination so as to avoid repetition and irrelevancy.

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Indeed, the Council envisages that most hearings will be occupied with discussion about the material filed, and not with evidentiary matters.

92. RECOMMENDATION 21The regulations should provide that each party have full rights to present and cross-examine witnesses at hearings, subject to compliance with all procedural requirements and subject to the directions of the Tribunal on relevance to his documentation and on repetition.

Transcripts of Hearings93. Some submissions referred to the present practice of the Tribunal in insisting that no record or transcript of proceedings other than that produced by the Court Reporting Branch may be made. It was suggested that this transcript was unreasonably expensive to parties, and slow in production. Submissions suggested that a transcript should be produced by Hansard and be available free to parties within a short period of time, or that the claimed 'copyright on proceedings' should be removed so that members of the public could make private tape recordings and transcripts.

94. The Tribunal's practice of announcing that no private record may be taken upon the basis of some 'Crown copyright' seems to be erroneous, since the Commonwealth has copyright in the transcript it produces and not in most of what is said at inquiries. Given that the Tribunal allows the disruption of TV crews filming the start of its inquiries, there seems little reason for it preventing members of the public from discreetly making tape recordings of its proceedings.

95. RECOMMENDATION 22The regulations should provide that any person may record public proceedings at inquiries in a mode which causes no disruption to those proceedings, unless the Tribunal otherwise directs.

The Active Involvement of the Tribunal in Inquiries96. Although the procedures recommended by the Council would require the Tribunal to proceed with more formality than most administrators, the Council affirms that the Tribunal remains an organ of administration and not a court, and has important responsibilities to take an active part in proceedings conducted by it. In particular, the Tribunal will often need itself to initiate inquiries into whether it should exercise particular powers, and also, regardless of who initiated the inquiry, will at times need to become actively involved in investigation and analysis at stages before actual decision making.

97. Despite this, active involvement in preliminary stages and in a hearing will always carry a danger that the Tribunal's roles of prosecutor and judge may conflict, and that its integrity in performing either of these functions may appear weakened. Some rigorous solutions to this problem have been suggested to the Council, including establishing a separate

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prosecuting agency and the separation within the Tribunal of an independent broadcasting supervisory wing, so as institutionally to segregate the Tribunal members who will ultimately decide proceedings. As a principle it is desirable that a Tribunal member who makes a decision to initiate proceedings against a person involving sanctions should not sit in a determination of those proceedings, and the Council suggests that internal procedures should be adopted to achieve this. These may require delegation by the Tribunal of its power to initiate proceedings. It is clear also that, when the Tribunal is actively involved in an inquiry, it must be particularly concerned to ensure that all material produced by it is properly documented, placed on the public file and available to all parties in advance of a hearing, and that the Tribunal must take care at all times to be and to appear to be impartially approaching its final decisions.

98. Within the procedure recommended above for the commencement of inquiries, reference was made to the possibility that the Tribunal itself would initiate some inquiries into whether it should exercise some of its substantive powers. It may be expected that often it will be the Tribunal, rather than private parties, who will be the initiator of inquiries into alleged breaches of standards, and into the suitability of general broadcasting standards. The Council considers that the Tribunal should be under the same obligations as private applicants, so far as giving full information in an initiating document accompanied by evidence in written form is concerned.

99. RECOMMENDATION 23(a) The regulations should provide that where the Tribunal proposes

inquiry proceedings of its own motion, it should do so in a form basically similar to that of proceedings commenced by the application of outside persons.

(b) The regulations should provide that where the Tribunal initiates inquiry proceedings, the initiating document should particularise any facts or matters which have caused the Tribunal to commence the inquiry. The Tribunal should also be required immediately to place on the file any reports or other documents concerning the matters the subject of the inquiry which are not the subject of confidentiality orders.

100. Although to some extent procedures for public input into the making of decisions on broadcasting regulation mean that smaller administrative structures for monitoring, policing and investigation are needed, the Government has recognised that some resources still need to be provided for these activities. This is because few community groups have the capacity or funding properly to investigate and present material on such matters as corporate control, program monitoring, public opinion, and the social and financial implications of programming alternatives. Usually, members of the public will only be able to point to the need for research on these matters and to raise them as relevant issues in Tribunal inquiries.

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101. At present the Tribunal is required by the Act to assemble and make available information on broadcasting and television in Australia (s.106A), and its Research and Inquiry Branch has this role. The Branch has a practice of preparing a 'background paper' in relation to each inquiry conducted by the Tribunal, which summarises the content of applications and provides some information and analysis relevant to the inquiry. These papers have usually been available to parties and the public only shortly before the date of the inquiry hearing. Following the the Tribunal's Self-regulation Report, the Guvernment announced an intention to establish a separate Broadcasting Information Office which will take over the functions of collecting broadcasting data and research, and making this available to the industry, the public and the Tribunal. However, as the High Court pointed out in (the) ex parte Hardiman [case] (1980) 54 ALJR 314, under the Act the Tribunal retains an obligation itself thoroughly to investigate matters arising in inquiries. In that case, the Court indicated that this obligation arose independently of the presence of persons willing, anxious or able to present a case to the Tribunal. The Council agrees that the Tribunal should continue to have the responsibility independently to assess each inquiry to see whether there are matters needing investigation not being raised by a party. It suggests that the Tribunal should specifically be empowered to conduct its own research or to commission reports.

102. The Act at present gives the Tribunal wide powers to ensure that evidence is produced for the purposes of an inquiry, including powers of summons (ss.21, 99, 106, 106A. 117). The Council considers that these generally are sufficient for the Tribunal to inform itself and to receive evidence in any form, but it makes two supplementary recommendations. The Council agrees that the Act could be amended as was proposed in the 1980 Amendment Bill No. 2 to impose on licensees express obligations to keep and produce such records of matters broadcast as are specified by the Tribunal. The Council also recommends that the Act could be clarified in relation to the applicability of section 120, which prohibits the publishing without the licensee's consent of matter which has been transmitted by a station. At times the Tribunal has been led, perhaps erroneously, to refuse to receive relevant evidence on the basis that this section would be contravened. Some people who made submissions to the Council also suggested that at times the Tribunal had been led to believe that the law of copyright prevented the tendering of evidence of private monitoring of programs. If this was so, it seems wrong to the Council, since the inquiry proceedings of the Tribunal are 'judicial proceedings' within section 10 of the Copyright Act 1968, and consequently no copyright can be infringed 'by anything done for the purposes' of an inquiry (s.104 of the Copyright Act 1968).

103. RECOMMENDATION 24(a) The Tribunal should be empowered to request reports from such

agencies as may be established for this purpose, and to commission research on matters specified by it as relevant to proceedings.

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(b) The Tribunal should be empowered to require any licensee to keep records of matters broadcast, and to produce records to the Tribunal.

(c) The Act should be amended so as to make clear that evidence of broadcasting activities may. be received by the Tribunal in any form, and that section 120 is subject to this.

104. Although the Tribunal should be able to exercise its powers of investigation at any stage of an inquiry, the Council recommends that the normal time for doing so should be when it conducts its assessment at the expiry of the return date for submissions (see above paragraphs 56-57). If necessary, the question of further investigation could be discussed at a conference or preliminary hearing, and the objective should be that the results of any investigation will be reduced to writing and placed on the file and thus made publicly available well in advance of a hearing being held. The Council would subject the Tribunal to the same documentation disciplines as those imposed on other participants in inquiries. This means that where the Tribunal wishes to consider evidence from a witness it should normally place his evidence as a written statement on the file, and that the issues it wishes to raise itself should be properly documented and notified in the preliminary stages. The Council would apply this equally to any legal advice received by the Tribunal specifically on matters which are the subject of an inquiry.

105. There may seem to be a problem in relation to the use by the Tribunal of material coming to it other than in the course of an inquiry. To some extent this is inevitable and desirable: it underlies the reason for appointing experts to the Tribunal, and for expecting it to develop specialised knowledge. All general background information being applied in reaching a decision on the exercise of powers obviously cannot be formally filed in each inquiry. However, the Tribunal should be alert to ensure that all particular knowledge it has on the issues raised in an inquiry is expressly introduced into the record of the proceedings, and preferably during the preliminary stages. It should not prevent a party raising a relevant issue because the same issue was raised in another inquiry, although this may be a good reason for giving directions to expedite that part of the proceedings.

106. RECOMMENDATION 25 (a) The regulations should require that all investigations conducted by

or on behalf of the Tribunal which it is proposing to consider in proceedings, whether initiated by the Tribunal or an outside person, should be reported in documents placed on the record with sufficient time for applicants and persons who make submissions to reply and comment, and no later than 28 days before the date of any hearing.

(b) The Tribunal should ensure that all legal advice received by it before a hearing on the matters the subject of a current inquiry is recorded in writing and placed on the inquiry file.

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(c) The regulations should provide that, where the Tribunal itself wishes to call a witness, if possible his evidence should be made available during the documentary stage of an inquiry.

107. Where the Tribunal has itself initiated an inquiry, or has become actively involved in investigating matters during the preliminary stages, a question may arise as to how the Tribunal is to conduct a hearing in the inquiry. It is at the hearing that the possible conflict of roles may appear to be greatest, and the Council recommends that the Tribunal should be alert to identify hearings at which no party will be pursuing the issues which it wishes to pursue. As it is important that the Tribunal members conducting the hearing are and appear to be impartial, the Council recommends that the Tribunal should engage counsel to assist it in such circumstances, or should use an officer to appear and present the material prepared for the Tribunal and if necessary to cross-examine any other witnesses commenting on that material. Where the person assisting the Tribunal at a hearing is advising it upon legal or procedural matters, the Tribunal should also hear any contrary advice sought to be given by other parties.

108. RECOMMENDATION 26The Tribunal should as a general rule tie assisted by counsel or officers appearing at hearings where it wishes actively to present a case, or where it may call a witness who is to be examined by a party.

Reasoned Decisions109. An inquiry proceeding does not conclude at least until the Tribunal makes its decision and reports its findings and reasons. Under the present section 25B of the Act the Tribunal is obliged to prepare a report of every inquiry, which is to contain findings and reasons for any decision or recommendation. The Tribunal is required to cause the report to be made available to the public, and to furnish it to the Minister, who is required to lay it before each House of the Parliament within 15 sitting days of receipt. The Council has some doubts whether the tabling requirement is necessary for all decisions of the Tribunal, and recommends that this requirement of section 25B should be examined by the Government.

110. In the past the Tribunal has had great difficulty in publishing its reports at the time of its decisions, and indeed within a reasonably short period of time thereafter. However, the Tribunal has informed the Council that it is endeavouring to finalise all outstanding reports, and that where possible publication of reasons should accompany a decision.

111. The Council agrees that this is necessary, and emphasises the loss of credibility which the Tribunal suffers if it is unable to give full reasons at the time it gives its decision. The Council considers that save in exceptional circumstances the giving of reasons at the time of making a decision is highly desirable, and notes that the possible difficulties where

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the Tribunal lacks time to prepare reasons before the expiry of a time limitation will be overcome by giving it the power to extend time (see above paragraphs 67-69), and by allowing the Tribunal to give reasons orally.

112. RECOMMENDATION 27(a) The Tribunal should, where possible, adopt the practice of giving its

reasons for all substantive or procedural decisions at the times when decisions are made.

(b) The Tribunal should consider what steps are available to enable those of its decisions which state its view upon the interpretation of the Act or regulations or upon general criteria relevant to the exercise of its powers to be made available to persons wishing to participate in its inquiries.

OTHER MATTERS AFFECTING PROCEDUREMembership and Organisation of the Tribunal113. Under the Act, the Tribunal consists of a Chairman, a Vice Chairman, and from one to three other members, all appointed full time for up to 5 years (s.8). There is also provision for the appointment of acting members during a vacancy in the office of a member (s.10), and for up to six associate members or acting associate members to assist the Tribunal in relation to particular inquiries (ss.11, 12). The Act empowers the Chairman to designate the members who will constitute a Division of the Tribunal for the purpose of holding an inquiry, except for those inquiries concerning renewal of the licences of capital city commercial stations or the suspension or revocation of licences. But the powers of the Tribunal constituted by a Division do not extend to the making of the decision, recommendation or report in the matters the subject of the inquiry (s.15C). It is evident, therefore, that substantive decisions of the Tribunal are to be made in meetings held under section 15B, for which a quorum is a majority of the members for the time being holding office. Questions at these meetings are determined by a majority of members present and voting, with the presiding person having a deliberative and a casting vote. The Chairman has power to reconstitute a Division of the Tribunal where one of the members has ceased to be a member or has become unable to perform his functions as a member (s.25A). The Tribunal is empowered with the approval of the Minister to appoint such advisory committees as it thinks fit.

114. The making of appropriate appointments to the Tribunal is clearly crucial, since no rules of procedure can absolutely guarantee a fair and expeditious proceeding. This must ultimately depend upon the personal abilities of the persons administering the procedure. People making submissions to the Council suggested that many of the problems

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encountered in the early stages of the Tribunal resulted from its members, particularly its first Chairman, lacking experience or skills in directing a public hearing and in establishing fair procedures. To the Council, the history of the Tribunal demonstrates the need for at least some members to have the ability to conduct hearings which may involve difficult legal questions arising under the Act. The Council considers that the Act should require at least one member of the Tribunal to be an experienced legal practitioner, but should not require that person necessarily to be the Chairman, although this may normally be the case.

115. Apart from legal experience, other abilities are also obviously needed, and there seems good reason for ensuring that persons of differing relevant skills, experience and outlook are appointed. However, this objective should not override the need to appoint persons who have the respect and confidence of all sectors of the community, on whose behalf they exercise their powers. This means that members should be people who are and appear to be independent, impartial and able to resist any pressures likely to be brought upon them. The Council considers that these objectives can be met within the present provisions of the Act, and does not recommend the insertion in the Act of other relevant qualifications of membership.

116. The Council considers that the independence, status and experience of the Tribunal would be increased by its members being appointed for longer terms than at present. It recognises that the Government may see advantage in allowing changes of membership to bring new outlooks to the Tribunal, but suggests that this should not be done so as to impede the ability of the Tribunal properly to exercise its responsibilities. Short-term appointments may appear particularly inadvisable for persons apppointed for their experience gained in the broadcasting industry, as they may be seeking re-employment in that industry at the conclusion of their term.

117. RECOMMENDATION 28(a) The Act should provide that at least one member appointed to the

Tribunal shall be a legal practitioner of not less than 5 years standing, and that all appointments shall be for up to 7 year terms with eligibility for reappointment.

(b) In practice, appointments should be staggered so that some continuity of membership is maintained, and should also be for terms as close as practicable to the maximum.

118. It was suggested to the Council that the provisions of sub-section 15C(6) preventing the Tribunal from sitting in Divisions for inquiries into the renewal of metropolitan licences or into the suspension or revocation of a licence could cause some administrative inconvenience, and have little point. The uniform procedure recommended by the Council may also require some flexibility to ensure that the time of Tribunal members is efficiently occupied. The Council recommends that this limitation be removed, and that the Chairman be given a general discretion to

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constitute Divisions. A Division need not be constituted until after preliminary stages of an inquiry have concluded, and it may be expected that the Chairman will be in a good position then to constitute the appropriate Division according to the likely nature of the hearing and the inquiry.

119. The Council also suggests that the inquiry procedure recommended by it would be assisted by the Chairman having a more flexible discretion to reconstitute Divisions, and a wide discretion to appoint members to make procedural orders in inquiries. However, once a Division has been constituted and has conducted a hearing in an inquiry, the Council considers that the Division should normally have the sole responsibility for making the substantive decisions in the proceeding. The Council therefore recommends the repeal of section 15C(7), which provides that the powers of the Tribunal constituted by a Division do not extend to the making of a decision, recommendation or report on the matter or matters the subject of the inquiry. This provision was much criticised, since it provides no assurance that the other members of the Tribunal participating in the decision will be familiar with the matters canvassed at the hearing. Indeed, because of the provisions of section 15B(7), it still allows a minority of Tribunal members to decide matters, and may allow a member who has withdrawn from the hearing, perhaps to avoid the appearance of bias, to participate in actual decision making. The Council does, however, recognise that there may be special circumstances where, during or after a hearing conducted by a Division, the proceedings appear to concern a matter of major importance upon which a decision of the full Tribunal is desirable, and where a rehearing is not necessary since credibility is not in issue.

120. RECOMMENDATION 29The Act should be amended to provide that:(a) there is no limitation upon the Chairman's power to constitute a

Division of the Tribunal for the purposes of holding an inquiry;(b) the Chairman may direct the reconstitution of a Division at any time

before the commencement of a hearing in an inquiry, and after that time, if a member of the Division ceases to be a member or to be available for a hearing, the Chairman may direct that another member is to replace him;

(c) where a Division is constituted, only members constituting that Division may participate in making the decision, recommendation or report upon the matter or matters the subject of the inquiry, provided that in special circumstances the Chairman may direct that the decision, recommendation or report is to be made by the Tribunal; and

(d) any powers to give directions as to the steps to be taken in an inquiry may be exercised by the Chairman or by a member designated by the Chairman, whether or not he is a member of the Division constituted for the holding of the inquiry.

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The Tribunal's Powers121. Many of the substantive provisions of the Broadcasting and Television Act 1942 present difficulties of interpretation, and these emerged in the course of the Tribunal's public inquiries, confusing the definition of the relevant issues and resulting in lengthy legal argument at hearings. Submissions received by the Council called for amendment of the Act to clarify its substantive provisions, and the Tribunal also noted that what were perceived as problems of procedure sometimes really arose from inadequacies or uncertainty in provisions of the Act. The Council is not concerned to assess the policies behind the powers conferred on the Tribunal, nor with how the legislation is framed except to the extent that it impedes the development of satisfactory procedures. However, the Council sees a need for several amendments to adjust the legislation to assist in fully implementing the Government's policy of public participation in inquiries.

122. The Council considers that the Act is deficient in the absence of statements of useful criteria by which the Tribunal is to make its decisions in important areas. Generally, at present, the Tribunal is either given unstructured discretions, or is required to consider 'the public interest' - a most unhelpful guide.

123. The Council recognises that the Tribunal will always have a responsibility to develop and explain the criteria by which it makes decisions, but has found that both the Tribunal and persons wishing to participate in inquiries have had great difficulty in discerning the issues relevant to many inquiries. The Council considers that statement of criteria in the legislation would not only ensure that the Tribunal knows the intentions of the Parliament, but would also enable people participating in the Tribunal's proceedings to locate and address the issues of relevance in each inquiry. It suggests that either a general statement of the underlying objects of the powers of regulation conferred by the Act, or particular statements of the policy criteria to control the exercise of particular Tribunal powers, should be included in the Act. The Council notes that section 3 of the Canadian Broadcasting Act sets out a Broadcasting Policy for Canada. No view is expressed as to whether the terms of that policy are appropriate for Australia.

124. Considerable confusion has arisen in the course of the Tribunal's renewal hearings on whether the Act gives the Tribunal power to investigate broadcasting practices and the policies of licensees which do not directly bear upon the specific legal conditions binding licensees, i.e. the requirements of the Act. conditions of licences and validly prescribed standards. Although it has frequently received argument from the representatives of licensees that renewal hearings are concerned solely with the question whether grounds exist for not renewing a licence, the Tribunal considers its responsibilities extend to influencing the behaviour of licensees to provide services in accordance with current concepts of the public interest. It was in recognition of this role that it suggested in its Self-regulation Report the introduction of a system of promises of

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performance, and much of the public interest shown in renewal inquiries has been directed to matters of this sort rather than to issues strictly of renewal. The Council recommends that the Tribunal's powers in this area should be clarified. It envisages that its procedures for informal conferences as alternatives to hearings may provide a satisfactory approach to the exercise by the Tribunal of these responsibilities.

125. It was suggested to the Council that the Tribunal's renewal hearings also showed a defect in the Act in that it did not provide the Tribunal with an effective range of sanctions against proven breaches of broadcasting standards. The absence of this was pointed to as the cause of a 'credibility gap', which led to disillusion with the concept of public participation. This was because the Tribunal was seen to renew licences, while making no response to demonstrated incidents of breaches of standards or of the broadcasting behaviour expected by the public. It was suggested that under the present Act the Tribunal's armoury for regulating broadcasting is too limited, and that it should be supplemented by powers to comment adversely, to reprimand, to order 'counter' advertisements or 'on-air' apologies, to suspend the right to broadcast advertisements or to fine. Other proposals would establish procedures to warn licensees that their licence was being jeopardised, by having provisional licences or a 'point system' of warning notices. The Council agrees that there seems to be a need for the Tribunal to have more realistic options for responding to activities by licensees which deserve varying degrees of disapproval. It recommends that this be done to the extent that legislation to effect it can be drafted consistently with the constitutional separation of judicial and administrative functions.

126. RECOMMENDATION 30(a) The Act should be amended to include clear statements of the

policy criteria seen by the Government as relevant to the exercise of the Tribunal's important powers.

(b) The Act should be clarified in relation to the Tribunal's power to issue directions to particular licensees and to attach conditions relating to one, some or all aspects of their future broadcasting activities, and also in relation to its power at inquiries to investigate and comment upon matters connected with the past or future broadcasting practices of the licensees concerned.

(c) The Act should confer upon the Tribunal a wider range of powers to respond to breaches of broadcasting standards, including power to reprimand or admonish and to direct the publication by the licensee concerned of such a reprimand or admonition, and power to impose temporary restrictions on advertising.

Alternative Methods of Public Involvement and `General Inquiries'127. Although this report is concerned with recommending procedures which will satisfy the Government's policy of public participation in inquiries conducted by the Tribunal before making decisions, the Council recognises that parts of its administration will be conducted outside its

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inquiries, and that some of those parts may appropriately contain elements of public participation. Alternative methods of involving the public in broadcasting regulation may include: public knowledge of Tribunal processes by way of freedom of

information legislation or annual or occasional papers published by the Tribunal;

public education or media information services provided by the Tribunal;

active Tribunal research and information gathering, involving contact with the public in attitude or opinion surveys, seminars etc.;

use of Tribunal advisory community committees, or informal liaison with interest group;

operation by the Tribunal or BIO of an 'ombudsman' system to settle public complaints about broadcasting.

The Council makes no recommendations on whether or how the Tribunal should approach these other methods of public participation. Such alternatives may often be cheaper and more efficient methods of achieving some general purposes of 'participation' than an inquiry procedure.

128. The proposal that the Tribunal should hold 'general' inquiries unrelated to the exercise of its substantive powers was first mooted by the Tribunal during 1979, when it discovered that its renewal hearings were not satisfying commonly held expectations of participation. The proposal was accepted by the Government in introducing the Broadcasting and Television Amendment Bill No. 2 1980, which foreshadowed a new section 18A which would empower the Tribunal to hold inquiries into the adequacy of broadcasting or television services either nationally or locally, the codes to be observed by licensees, and other incidental matters. It was apparently thought that these 'inquiries' could be held regularly in each area of Australia and could receive all types of public comment on broadcasting services. Because they would not be part of a process leading to the exercise of powers, more informal and arbitrary procedures could be adopted, and the Bill would give the Tribunal an absolute discretion to control who could appear and the nature and extent of examination of witnesses. Several submissions to the Council warned that public interest groups would not be attracted to participating in these 'inquiries', and that they should not be seen as a substitute for effective rights of participation in inquiries leading to decisions.

129. The Council agrees that 'general' inquiries under section 18 of the Act will not normally require the same procedural protections and formalities as it recommends for inquiries leading to decisions, although their terms of reference should be stated as clearly as possible when they are commenced. This is because their objectives will not directly affect the interests of persons or of the community in the conduct of current broadcasting regulation. However, the Council would still see benefit in these inquiries following a documentation procedure, and given the

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flexibility which the Council has incorporated in its uniform inquiry procedure, that procedure may often be appropriate for these inquiries.

130. Since these inquiries may give open-ended invitations to the public to raise any matter concerning broadcasting, they may at times give rise to issues of whether the Tribunal should exercise some of its regulatory powers, for example, by making standards or by commenting upon the behaviour of particular licensees. The Council is concerned that as soon as these issues arise, the persons affected should have the rights and protections offered in the uniform procedure. If this occurs, the Council suggests that the Tribunal should initiate new inquiries with terms of reference specifically directed to these matters.

131. RECOMMENDATION 31The Tribunal should initiate a new inquiry if, at any stage of a'general inquiry', the possible exercise of one of its substantive powers becomes an issue.

Assisting Participation132. Many submissions to the Council suggested that various forms of assistance should be given to people or groups wishing to participate in inquiries. These suggestions chiefly came from groups wishing to raise public interest cases, who found their resources insufficient to enable them to present fully researched and persuasive material, and were unequal to the resources available to commercial licensees. One group also pointed to the financial burden on non-profit public broadcasters when defending themselves in inquiries into the revocation of licences. The Council was informed of recent recognition in U.S.A. and Canada of the need for some public funds to be channelled to assist public interest groups to participate in broadcasting regulation, either through grants or through a procedure for reimbursing costs.

133. It seems to the Council that to be fully efficient the policy of public participation in broadcasting regulation may involve devising forms of assistance to participants. However, the Council considers that it is beyond its function to make recommendations upon the form and extent of any such assistance. To the extent that its recommendations on a uniform procedure may give rise to a new body of rules and forms to be understood by persons wishing to participate, the Council suggests that the Tribunal's staff should continue their current practice of being readily available to give general advice upon the Tribunal's procedures.

Prosecution of Contempts and other Breaches of the Act134. The Department of Communications has suggested that the Council could report on the provisions of section 25AB of the Act, which creates offences for actions which would constitute a contempt of Court if the Tribunal were a court of record. The Department stated:

We are advised by the Attorney-General's Department that it is the portfolio responsibility of the Minister for Post and Telecommunications to initiate any

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legal proceedings for any alleged breaches of the Broadcasting and Television Act. It would therefore be a matter for the Minister to consider whether legal action should be commenced in respect et an alleged breach of the matters covered by section 25A8. Because of the particular nature of the offences covered by that section, it seems that a case could be argued that the Tribunal itself should be given the responsibility to initiate and to prosecute alleged offences which fall within the category of actions which are 'in contempt of the Tribunal'.

The Council agrees that it would be convenient for the Tribunal to be given a similar role in initiating prosecutions for contempt to that which the Council has recommended should be given to the Administrative Appeals Tribunal (see Third Annual Report, para. 98).

135. RECOMMENDATION 32The Act should be amended to empower the Tribunal to summon a person who may be in contempt of the Tribunal to show cause why proceedings should not be taken against him. Upon the Tribunal deciding that proceedings should be taken, the Secretary of the Tribunal should be empowered to apply to the Federal Court for that Court to determine whether there has been a contempt and, if so held, to fix a punishment.

136. A more difficult question concerns whether the Tribunal should have a role in relation to prosecution of other offences under the Act. Undoubtedly, the Tribunal may at times in the course of its inquiries receive information which could justify such prosecutions. However, the role of prosecutor before the Courts could interfere with its function of adjudicating upon the exercise of its regulatory powers. With the support of the Tribunal, the Department has suggested that consideration be given to a procedure whereby the Tribunal notifies the Minister of allegations of contraventions of the Act which come to its notice at public inquiries or through its other activities. The Council considers that no formal procedure should be established, but that the Tribunal ought to take note of possible offences coming to its notice, and refer them to the Minister.

137. RECOMMENDATION 33While the Tribunal ought not to be given a formal role in the prosecution of people for alleged breaches of the Act, it should take note of prima facie breaches coming to its attention in the course of inquiries, and draw them to the attention of the Minister.

The Prescription of Procedures138. Throughout this report the Council has recommended that certain procedures be prescribed by regulation. The Council sees real need for these rules of procedure to be carefully formulated, collected in a readily available written form, and made available to all members of the public. It is fundamental that not only must there be procedures to enable the Tribunal to conduct orderly and effective inquiries, but also that these procedures must be well known by all persons participating.

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139. RECOMMENDATION 34The Act should permit regulations to be made containing inquiry procedures and forms. These regulations should contain sufficient powers to waive departures, where it is just to do so. As far as possible, advance notice should be given before major changes to procedure come into effect, and the regulations and other rules of procedure should be readily available to the public.

140. The Council recommends that this report be published.

February 1981

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APPENDIX IList of Persons and Organisations Making SubmissionsActors and Announcers Equity Association of AustraliaAdvertising Federation of AustraliaMr M. ArmstrongAustralian Association of National AdvertisersAustralian Broadcasting TribunalAustralian Council for Children's Films and TelevisionMs J.J. BaileyMr T. BarrMr A. M. BlacketSenator J. ButtonCommunity Radio Federation LtdDepartment of CommunicationsLady DuckmantonDr P. EdgarMr C. EnrightFederation of Australian Radio BroadcastersFilm and Television Production Association of AustraliaGay Task ForceMrs M. GrahamMs K. HarrisonHenderson & LaheyHobart FM Inc.Justice in BroadcastingMr M. KeoghMr P. G. LairdMr A. LangerMr C.V. LatzMetro-West Broadcasters LtdNational Consumer Affairs Advisory CouncilN.S.W. Public Broadcasting AssociationMr K. P. O'ConnorMr R. OrrDr A. J. PalumboPan Metro Broadcasters Pty LtdMr A. E. A. PetherickProgressive Music Broadcasting Association (S.A. Inc)Public Broadcasting Association of AustraliaSenator S. RyanThe Australian Children's Television Action CommitteeTVW EnterprisesVictorian Council for Children's Films and TelevisionVictorian Federation of State School Parents ClubsMr R. WattervonProfessor H. WhitmoreMr L. G. WilliamsMr M. F. E. Wright

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APPENDIX 2Persons Met by the ABT Committee

Mr B. Cormack - Advertising Federation of AustraliaMr M. ArmstrongMr A. M. BlacketMs N. AtkinMr N. Caffin - Community Radio Federation LtdMr J. HerbertMr M. O'DonaldJanet StricklandMr C. EnrightMr D. FosterMrB. Phillips - Federation of Australian Radio BroadcastersMr B. RogersonMr B. ScottMs K. HarrisonMr S. Fowler - Justice in BroadcastingMr M. KeoghMr R. OrrMr R. Gelski - Pan Metro Broadcasters Pty LtdMr J. TorvMr A. E. A. PetherickMs S. Matthews - Public Broadcasting Association of AustraliaSenator S. RyanDr R. SharwoodMrs S. Guest - Victorian Council for Children's Films and TelevisionMr R. WattersonMr L. G. WilliamsMr M. F. E. Wright

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APPENDIX 3Outline of Submissions Received by the Administrative Review

Council on the Procedures of the Australian Broadcasting Tribunal

Many valuable submissions were received by the Administrative Review Council during the course of its inquiries. Listed below are only some of the issues which they raised. No reference is made to submissions relating to review of decisions made by the Tribunal.

Submissions of the Department and the ABTThere was general agreement between the Department and the Australian Broadcasting Tribunal on a number of issues including the following: Public inquiries to precede licensing decisions; inquiry to be in stages

with pre-hearing activities and Directions hearings. The benefit to the Tribunal in having a number or members with legal

experience, although it was recognised that other experience relating directly to the Tribunal's activities was also of great importance.

A division of the Tribunal should be empowered to decide a matter and not have to rely on the full Tribunal.

The benefit to public participation in having advertised in advance the hearing and the way in which the public may participate.

The facility of counsel assisting the Tribunal. That, in relation to locus standi; only persons (who have an interest in

the proceedings) who have previously given written submissions should be permitted to appear before the Tribunal; and be limited to argument on the matters referred to in their submissions.

A system of reference to the Federal Court on a point of law. The publication, with reasons, of all Tribunal decisions. Uniformity in procedures relating to initiation of proceedings,

application and submissions. Power in the Tribunal to extend time limits under the Act. The definition of public interest and/or performance criteria and the

requirement promises of performance. A procedure whereby the Tribunal would inform the Minister of

contraventions of the Act. The creation of the Broadcasting Information Office.

The Tribunal submission also suggested that the Council should consider the following matters: Powers in the Tribunal to be widened to provide for different penalties

such as public admonition or monetary penalties. Submissions should be allowed to be presented to all inquiries, not just

grants and renewals of licences. Responses to submissions by applicants should be made available to interested persons. Submissions should only be made available to the public after they had been judged by the Tribunal to be relevant.

Provision should be made for informal conferences and Directions hearings.

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Note: The Tribunal made a number of comments on the Broadcasting and Television Amendment Bill (No. 2) 1980, which are not covered in this summary.

Summary of Broadcasting Industry SubmissionsThe responses from the broadcasting industry varied greatly in length and content. As may have been expected, individual sections of the industry had particular interests. However, certain views on some matters were similar and these are summarised in point form below: Submissions before the Tribunal should, whenever possible, be in

writing for the specific purpose of identifying the issues and allowing broadcasters to be aware of any comments and criticisms they might be expected to meet.

Legal representation for all parties before the Tribunal should be expected to be the normal situation.

Procedures of the Tribunal should be clearly laid out for all participants in an inquiry as well as for the public generally, including adequate notice of inquiries and what participation was possible.

The lack of firm rules in relation to standing should be remedied. There should be consultation with the industry before changes in

legislation, rules, regulations or industry guidelines.

Some submissions commented on the apparent confusion in the Tribunal and persons appearing before it on the differences between an inquisitorial as opposed to an adversarial system of procedure. The extent of cross-examination in proceedings was considered to be, essentially, a matter for the discretion of the Tribunal. Mention was also made of the accessibility of submissions prior to inquiries.

Summary of Consumer ResponsesThe submissions received from persons who have been classified here as 'consumers' covered a divergent field of interests. Submissions ranged from short letters to detailed expositions on many facets of the broadcasting industry. The very broad spread of interests results in a summary in the very broadest of terms. However, the following points were considered by many respondents to be worthy of Council consideration: The need for clearly stipulated rules of procedures (including pre-

hearing procedures) which the Tribunal would follow, including such things as identification of rules on standing, the right to appear in person, the limits of topics upon which people who had previously made submissions could address the Tribunal and the role of cross-examination.

The application of the above rules may be different depending on the particular hearing, e.g. contrast a grant of licence with a general inquiry.

Qualifications of members of the Tribunal. An extended range of sanctions should be available to the Tribunal.

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The procedures which have been adopted by the Tribunal have been inconsistent with public participation.

The Tribunal should be more active in information gathering and investigation in inquiries.

The Broadcasting Information Office should be created as soon as possible.

Legal assistance should be made available for interest groups to present their views to the Tribunal.

The presence of broadcasters' lawyers has introduced an intimidatory atmosphere and wasted the Tribunal's time with unnecessary legal argument.

The position of 'Tribunal witnesses' is untenable as they have been given no assistance or protection by the Tribunal.

The Tribunal has been far too 'generous' in granting confidentiality to submissions.

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